With a pile of new evidence to consider, the Supreme Court is set to revisit the issue of eyewitness identification after its 1977 decision on the matter. The scientific understanding of memory has been revolutionized in the last 30 years and studies now suggest that about a third of eyewitness identifications are incorrect and these mistaken identifications lead to wrongful convictions (many convictions that were later overturned with DNA evidence involved eyewitnesses who were wrong). The problem with eyewitness identification is not only that it is unreliable at best, but also that it is usually enough to base a case on, with juries “over-believing” the testimony of an eyewitness. With the result that many cases hang on this powerful but unreliable evidence.

Many legal experts are glad the Supreme Court is taking another look at the issue, unfortunately the case that the Supreme Court is reviewing, Perry v. New Hampshire, is unlikely to lead to a definitive ruling on the whole issue, leaving the state of the law unclear (the justices will likely only decide on the use of eyewitness identifications in certain situations). Furthermore, the justices are not deciding whether limiting eyewitness testimony is a good idea, but whether the Constitution allows it, so they may be reluctant to make constitutionally-based regulations for using eyewitness evidence.

What many experts want is for eyewitness testimony to be treated more like “trace evidence”, a fragment of proof collected at a crime scene, whose integrity and reliability is assessed from investigation to trial. Experts have suggested several ways to make the evidence collected from eyewitness accounts more reliable and temper the impact of that evidence in a case. First, investigators could administer line-ups double-blind (so that neither the witness nor the person supervising knows the “right” answer), and even telling the witness that the suspect may not be present in the line-up or photo array. Then, at trial, judges would need to instruct juries about the limitations of eyewitness testimonies and the nature of memory.

This week, a New York Judge ruled against high-end shoe maker Christian Louboutin in the company’s efforts to stop competitor Yves Saint Laurent, from selling shoes with red soles. Although Louboutin was granted a trademark for the red soles in 2008, the judge said Louboutin would have trouble defending the “overly broad” trademark in court. The judge ruled that granting the injunction Louboutin was seeking would be tantamount to giving them a monopoly over the color red and would “impermissibly hinder competition”, unfairly restricting options available to other designers. Harley Irwin Lewin, the lawyer representing Louboutin, believes he could win at the appeals level if the company decides to take the case further, since the lacquered red sole has achieved trademark status with the public and because Louboutin only plans to defend certain hues of red on certain types of shoes. A lawyer for Yves Saint Laurent, however, countered by saying that if Louboutin won this case, it would invite endless lawsuits and force judges to become arbiters of fashion design.

Was Louboutin’s trademark “overly broad”? How do you expect the shoemaker to do in appeals court?

For more on Intellectual Property Issues in the fashion industry, check out Representing the Fashion Client on Lawline.com

Some people hate their job, but here at Lawline we are lucky to have people who are intensely passionate about building a strong cohesive culture and making this a great place to work. A great company culture is not something that just "happens," it is designed. And Lawline CEO David Schnurman has put a lot of thought into designing a strong company culture based on a collaborative fun environment full of people who like to be challenged, and has been recognized for his ideas most recently by the Fox Small Business Center.

In his recent article on the Fox Small Business Center, David writes about the difficult process of creating a collaborative and challenging environment. He gives examples of things he has done to create this kind of environment that we see on a daily basis here at Lawline.

The result? David said and I think we would all echo that "We are fortunate to now have successfully achieved a fun atmosphere where our employees come early, act professional, exude positive energy, and feel committed to the success of the company, while always pushing each other to find a better way to accomplish our goals."

Read the full article "How to Build a Successful Company Culture" on Fox Small Business Center Here

Although the National Labor Relations Board has just proposed new rules that would sreamline and speed-up procedures for unionizing elections, a move that supports unions, many other stories from today show that labor is taking a hit. First, the Supreme Court threw out a class-action suit brought against Wal-Mart by female workers claiming employment discrimination at the major retailer. The court's decision was strongly critizized by labor and consumer groups for strictly limiting the ability of plaintiffs, whether workers or consumers, from banding together to bring large class action suits against businesses. Also, in NJ, a bill that would limit the bargaining rights of government workers, as well as forcing them to pay much more for their benefits passed the State Senate. The bill would shift $3 billion in costs from the government to the workers, and according to the NYTimes, the bill's success is evidence of how much power public employee unions have lost. Aside from forcing union members to pay more for their pensions and benefits, the bill also stripped the unions of their rights to collectively bargain for healthcare. Supporters of the bill claim that with budget deficits and rising costs, they have no choice; Mr. Sweeney, the senate president, went further, blaming Union Leaders for the current labor situation. 

Feel free to comment: What do you think of the current state of unions? Do you agree with the Supreme Court Decision in the Wal-Mart Case? Is making public workers pay more for their benefits the best way for NJ to cut costs? 

For more on labor law and the NLRB, check out this course by Paul Galligan: Defending Your Case at the National Labor Relations Board. 

The New York Court of Appeals adopted a broad reading of the federal Communications Decency Act in a 4-3 ruling protecting the anonymous and defamatory comments from a February 2008 blog post. The comments were accused New York City apartment rental agent and seller Christakis Shiamili of being a racist, anti-Semite, wife-beater, an adulterer and a bad boss.

State defamation law is preempted by the federal act, claimed Judge Carmen Beauchamp Ciparick in her majority decision today. The majority upheld dismissal of the case on the grounds against Daniel Baum and Ryan McCann of the Real Estate Group of New York because they were found to not have authored the "obviously offensive" comments. The comments were originally made by a blogger named "Ardor Realty Sucks". Mr. Baum and Mr. McCann merely passed on the material to internet users, the court said.

Many find that this case sets pretty tough obstacles for plaintiffs to show enough information to overcome the defenses in the Communications Decency Act. Judge Ciparick cited the federal intention of the act to foster a free exchange of ideas and opinions on the Internet.

Read the Full Article on the New York Law Journal Here

Watch Herald Price Fahringer and Erica Dubno's top-rated course "The First Amendment: Defamation on the Internet"

Recently, the head of the International Monetary Fund, Dominique Strauss-Kahn has been charged with Sexual Assault, Forcible Confinement and Attempted Rape. We won’t opine whether he is guilty or not but will make note that the lawyer he chose to lead his legal defense was none other than our very own Benjamin Brafman. CNN recently did a profile on Mr. Brafman which can be read here. CNN’s legal analyst, Jeffrey Toobin, is quoted saying of Brafman that he is “the single best courtroom attorney I’ve ever seen”. While the article gives a great rundown of Benjamin Brafman’s expertise you can see for yourself right here on Lawline.com. We have four courses taught by Mr. Brafman and each one is extremely highly rated. His most popular course with Lawline is “The Strategic Defense of High Profile Clients”, which after representing the likes of Jay-Z and Michael Jackson he is more than an expert on.

We here at Lawline, wanting to share his expertise with the world are actually giving away the course for free! We hope you enjoy the course.

On Thursday, March 10th, New York State Senator Carl Kruger was accused, in connection with others, of being involved in a wide-ranging bribery scheme. Senator Kruger, a democrat from Brooklyn, is represented by Lawline.com’s highly decorated faculty member Benjamin Brafman. Mr. Brafman is a frequent speaker and his programs top all Lawline.com rating lists for being in depth in his analysis of high level defense.

With a wealth of experience representing high profile clients, from Michael Jackson to Plaxico Burress, Mr. Brafman has plenty of knowhow in the area of criminal defense. In his programs it is easy to see this experience as he provides dynamic lectures on preparation and techniques for a successful criminal defense. Lecture topics include defending the high profile client, defense strategies, and tips for creating a summation. 

Read the Wall Street Journal’s article on Carl Kruger’s case here.

Watch Benjamin Brafman and Marc Agnifilo in “Prosecution and Defense Strategies from Arrest to the Ultimate Acquittal”

The final entry of the series on the LegalTech Show at New York's Hilton Hotel is on a company steeped in more than 20 years providing legal technology; founded in 1987 Levit & James’ Best Authority is used by 65 of the 100 largest firms in the U.S. At LegalTech, Levit & James took the opportunity to announce its small firm edition of Best Authorities, Best Authority Light.

Best Authority Light offers comprehensive Table of Authorities (TOA) creation and is now available for the small firm practitioner. Best Authority minimizes the time it takes to create a TOA from hours to minutes. The software as a service also maximizes the professional look and accuracy of a legal brief. As a time management tool the Best Authority Light is a no-brainer for small firms who are looking for something to decrease the amount of time spent on creating a Table of Authorities. Instead of spending hours searching a document and detailing every key word, the software compiles citations for the brief in a matter of minutes. 

If you are a small firm attorney still completing TOA by hand, the release of Levit & James' Best Authority Light for small firms provides a fantastic opportunity to let technology take charge and reduce the stress and document overload faced by many small firms. To find out more you can visit levitjames.com.

One of the most exciting products from a technology standpoint at the LegalTech Show was the unveiling of Business Intelligence Associates' TotalDiscovery.com. This software as a service provides a multistep process to register custodians, collect data, and process a review set of documents. Their technology uses a state of the art "DiscoveryBOT™" that is capable of searching and completing discovery tasks completely on its own. IT and legal departments can prescribe different areas of collection, but DiscoveryBOT™ is capable of completing investigations totally on its own. 

While this sounds like science fiction, DiscoveryBOT™ is actually a tool that has been around for some time now. It is used in 40 countries and has thousands of custodians. The real launch announced at the LegalTech Show was their mobile app TotalDiscovery.com. Once downloaded, this app allows remote access and control of DiscoveryBOT™. After being downloaded and directed by the custodian, DiscoveryBOT™ goes to work compiling the requested data. Forensically sound copies of the identified data are then stored in a personalized collection cloud and, once complete, DiscoveryBOT™ disappears from your device. This app provides, in addition to a very neat technical framework, a ton of freedom for those who need quick and thorough e-discovery solutions. Be a part of the technical preview at TotalDiscovery.com.

At the LegalTech Show at New York's Hilton, some companies were announcing a new product, such as an iPad or iPhone app. Others used the platform to come out on their own as a legal technology company with something unique to offer attorneys. Trial Solutions is of the latter kind of company, one that has been around for years but has been mostly available to customers through indirect sales. However, at the LegalTech Show Trial Solutions took the opportunity to show off their new SelfLoader product and announce that they would be available directly to consumers. 

Trial Solutions' SelfLoader technology provides a full service document management and e-discovery solution. Attorneys are able to upload documents at their own convenience at no charge. This eliminates some of the long waiting times and charges associated with other e-discovery companies. For a small firm dealing with a lot of e-discovery documents, the Trial Solutions SelfLoader is a great product to take a look at. Find out more at trialsolutions.net.

At the LegalTech Show at New York's Hilton Hotel the theme was tools to cut through the chaos in attorneys' lives. There are so many tasks to manage, especially for small law firms, that it is necessary to streamline and simplify any process possible for an attorney to ensure a smooth working firm. Most large firms use some sort of full service practice and financial management tool to aid them in this monstrous task. Smaller firms, on the other hand, see this as too expensive or too difficult to use these large firm management tools. This is where Orion focused its problem-solving energy.

Orion is widely used by large firms, and is a full service system offering comprehensive practice and financial management. However, many small firms do not need some of the extras that come in the large firm package. Thus, Orion introduced a new small firm package of its management tool.

The system interface and installation process are geared towards the needs of small firm attorneys. The practice management tool focuses on integrating clients, cases, email and documents into a single easy to use system. Its financial management system offers a full-featured time and billing system. Plus, the real appeal of Orion's system is the price. Orion is offering a targeted approach to practice management that allows small firms to afford the tools they really need and eliminate tools that are not necessary. If you are an attorney at a small firm looking to expand, it is a great tool that is flexible and useful to streamline and eliminate many of the chaotic tasks of running a small firm. You can find out more at www.orionlaw.com.

The NY Times featured an interesting Op-ed piece by Harvard Law School Professor, Laurence H. Tribe, which argued that contrary to the expectations of many, the Supreme Court would not split along political lines to judge the constitutionality of the new Healthcare law.  Tribe argues that there is no gray area in regards to weather the insurance industry falls under Congress’s power to regulate interstate commerce.  Furthermore, Tribe doubts that the Supreme Court Justices will make a distinction between the ability of Congress to regulate “activity” but not “inactivity” as the federal courts that struck down the Healthcare law have done.  Tribe believes that the Healthcare law is constitutionally sound and that the Supreme Court Justices will uphold the law on constitutional grounds, and allow political motivations lead their decision.  

For the full article, click here

Last week's LegalTech Show was a great success. Many thanks to Christy Burke for setting up interviews with reps from top companies to discuss groundbreaking legal technology innovations for 2011. As a result of these great interviews each day this week I will profile a new product of great use for attorneys. 

The LegalTech Show in New York's Hilton Hotel was an expo where developers came from around the country to show off new gadgets and technology made expecially for lawyers. This year's attendants introduced a wealth of useful new technology focusing on taking the chaos out of an attorney's life. 

Worldox follows this idea with a sleek new iPad app that allows attorneys to manage documents on the go. The app is available free of charge for current Worldox customers and it offers extensive features for attorneys who are frequently on the move, including being able to search, dowlnoad, and change documents and document types on your local server before reloading them back in Worldox. 

As a document management tool, the app works seamlessly and allows user-friendly management of over 300 document types. If you're often in court and have lots of documents to manage, I strongly suggest you take a look at Worldox to help you manage your ever-expanding document database. To find out more go to www.worldox.com.

I’m a naturally curious person. When I meet new people I like to find out what they do, where they’re from, what they like and what makes them tick. This trait helps in my negotiations. Honest rapport building is important because it helps build trust and facilitates collaborative information sharing. Studies show we are more likely to say “yes” to someone we know and like.

Recently, an Arizona-based colleague attended a college football game in Texas where he ran into a high school classmate from Delaware who turned out to be the brother of one of his important customers. “Small world” encounters like this can help us identify common personal elements that can strengthen our professional relationships. Of course, this was very fortuitous.

So what can you do, practically speaking? Take your negotiation counterpart, customer or client to lunch or dinner and build rapport by exploring your possible common interests, both personally and professionally.

How have you successfully built rapport with your negotiation counterparts, customers or clients?

Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts' proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com.

A Previous Appeal, A Retaining Lien and Dismissal in Legal Malpractice
Here is a short, pungent and dispositive decision by the Appellate Division, Second Department in Zito v Fischbein Badillo Wagner Harding ; 2011 NY Slip Op 00285 ; Decided on January 20, 2011 Appellate Division, First Department.
We've seen a "charging lien" utilized as res judicata against a subsequent legal malpractice case, but the use of a "retaining lien" is much more rare. Presumably, there was litigation in which the Court also determined that fees were actually due to the law firm, and not simply that the law firm had the right to retain files pending a later determination.

What is the Statute of Limitiations in Legal Malpractice?
The question of whether there is a different statute of limitations for fraud or breach of contact when dealing with attorneys often arises. After all, it is a 6 year statute everywhere, is it not? The short answer is "no" and the longer answer is that the legislature gave attorneys special protection. After the Court of Appeals permitted a 6 year statute for breach of contract against attorneys, the legislature closed the "loophole". Now the rule is bright-line: 3 years.
In Tsafatinos v Lee David Auerbach, P.C. ; 2011 NY Slip Op 00503 ; Decided on January 25, 2011Appellate Division, Second Department we see the outcome.

How Much Can You Get Away With in Legal Malpractice
This disciplinary proceedings makes for a shocking read. This attorney went from a successful practice, to a legal malpractice claim, to a huge judgment against him in Federal Court, to the twists and turns which led to incarceration. Why? Because of a lie in a resume. in Matter of Dorfman ;2011 NY Slip Op 00440 ;Decided on January 27, 2011 ;Appellate Division, First Department ;Per Curiam we see what happens when an attorney doesn't want to pay a judgment. Eventually he reduces the payment to $50,000 but look what he ended up doing.

Twice Reversed and Continuing in Legal Malpractice
Cruciata v Mainiero ;2011 NY Slip Op 50066(U) ;Decided on January 14, 2011 ;Supreme Court, New York County ;James, J. is a very interesting example of the premise that if you keep showing up and keep at it, a better result may very well follow. In this case, a matrimonial action, plaintiff was awarded a divorce and some equitable distribution after a settlement. She perservered and won reversal of the stipulation in the AD. She went back and basically doubled her equitable distribution.

In the meanwhile, her legal malpractice case was dismissed, and again, she went to the AD, who, again, reversed Supreme Court. Now, she perserveres through a motion for summary judgment.

The Blustone Law Firm is a legal malpractice firm in New York City. Andrew Lavoott Blustone, principal of The Bluestone Law FIrm is a frequent blogger and contributor to the Lawline.com blog in the areas of legal malpractice and attorney misonduct.  Mr. Bluestone is also lecturer in one of Lawline.com's top-rated courses "Legal Malpractice Litigation."

According to a report in the New York Times, artist Jeff Koons, who himself has been sued 4 times for copyright violations, is going after two businesses that he claims are exploiting his art. Imm-Living produces, and Park Life (a gallery) sells, bookends that look like Koon's famous "Baloon Dog" sculpture which was installed on the roof of the Met. Koons' lawyers sent a cease and desist letter to the companies, but the gallery beleives Koons' case is baseless and is continuing to sell the bookends while  planning to defend its case in court. Intellectual property experts believe Koons will have a difficult time proving his property rights were violated as his sculpture was based on an object in the public domain (balloon dogs are staple of children's birthday parties) and the bookends in questions aren't exact replicas of his sculpture. Although Koons doesn't have a very strong case, a professor from the University of Chicago Law school points out that this suit is just part of the trend in art litigation where artists (and their estates) are becoming much more reactionary about copyright violations when it comes to comemrcial merchandise.

For the full article, click here
for more on intellectual property and art, watch Contemporary Art, Copyright and Moral Rights.

According to the New York Times, tax payers have been picking up the tab for the legal defense of former Freddie Mac/Fannie Mae executives against government investigations and civil lawsuits. So far, the cost for defending the finance companies from charges of fraud and accounting irregularities has added up to $160 million, and the suits are still continuing. The government can try to recoup these costs if the executives are found guilty, but that could prove challenging. The executives are protected by employment contracts and company by-laws that protect them from liabilities, including legal fees associated with defending against lawsuits. However, if the executives are found to be liable, the indemnification will not apply (it does not cover people that breach their duty of loyalty or act in bad faith), and the executives would be obligated to repay the government for the legal fees. It is unlikely, however, that the individual executives would actually be forced to pay such large sums.

for the full story, click here

for more on this topic, check out Transparency at the SEC: A Response to the Current Financial Crisis

NBA player Jared Dudley recently tweeted, “I need all NBA players to save there (sic) money.  Be prepared to live without a check for at least a year.  This is serious.”  Jared is referring to the possibility that the players may be locked out by the owners next season if the two sides are unable to agree to a new collective bargaining agreement.

Jared’s colleagues would be well served to heed his advice.  By planning ahead and financially preparing themselves to weather a lockout, the players will strengthen their leverage and power at the bargaining table.  Ideally, an agreement will be reached and the players won’t need the extra money saved.  But if it turns out they do, they’ll be very happy they took steps to prepare.  As renowned UCLA basketball coach John Wooden said:  “Failure to prepare is preparing to fail.”  And he’s absolutely right.

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Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts' proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com.
 

According to the Washington Times, The Supreme Court revisited the Anna Nicole Smith case yesterday. Although Anna Nicole Smith's life was popular tabloid fodder, the court case involved little drama, but lots of money. The Supreme Court  is being asked to rule on a disputed area of bankrupcy law: the estate of J. Howard Marshall's son, Pierce Marshall,  is contending that the bankrupcy court that awarded Anna Nicole Smith a part of Marshall's fortune overstepped its constitutional powers. The suit between Anna Nicole Smith and Pierce Marshall has gone on for 15 years, and is unlikely to conclude soon, despite the fact that both Smith and Marshall are now deceased.

For the full article, click here

For more on bankrupcy law, watch Basic Bankrupcy Law

According to a report on Bloomberg, Comcast and NBC are facing the FCC today to see whether the two companies can go ahead with their proposed merger. It is possible that the FCC will approve the merger as long as Comcast meets certain conditions, such as sharing NBC programming with its online competitors. The merger is also being reviewed by the Justice Department in case their are antitrust issues to be taken into account. The merger would see Comcast acquire 51% of NBC Universal by paying $6.5 billion in cash and contributing cable channels valued at $7.25 billion to a joint venture that will own the entertainment company.

for the full article, click here

for more on the legal aspects of mergers & Acquisitions, watch  Legal Due Diligence in Mergers & Acquisitions

The credibility associated with being cited in the press or being seen as an expert is very hard to buy in advertising dollars. This article shows you how to avoid some common public relations traps and get the most out of your PR efforts.
 
The old adage that the more things change, the more they remain the same still holds some truth. Public perceptions continue to have a strong hold in society. Visibility and credibility still go a long way in cementing business relationships and deals. Yet many law firms still don’t quite embrace public relations initiatives. The mystery about what public relations is remains. Far too many attorneys fail to understand how public relations works. Wrong assumptions are made such as thinking that an advertisement promoting the firm counts as PR or that only lawyers who do high-profile litigation cases receive media attention. Nothing could be further from the truth. Every day hundreds of small- and medium-sized law firms are quoted in widely read publications, raising awareness of their firms and gaining credibility as experts in the marketplace. Firms that don’t realize this suffer from missed opportunities to attract new clients.

The truth of the matter is that public relations is at the heart of every good marketing plan for ALL law firms. The credibility associated with getting cited in the press or being seen as an expert is very hard to buy in advertising dollars.
 
Why is PR so powerful? It's "earned media" in the form of being quoted in a news story, rather than "paid media" in the form of an advertisement or advertorial. An old friend with a senior position in sales who worked in the advertising department of the Journal of Commerce explained it to me simply: If a half-page ad in the business section is worth $15,000; a story of the same size on the front page is worth roughly five times that much. Advertising professionals will disagree with me on this and it's their job, but here’s a better benchmark: ask yourself: Do you buy The Economist/Wall Street/CFO Journal for the punch and perspective of the articles, or for the wide variety of advertisements in the publication?
 
Bottom line, advertising is publicity that is paid for. The lawyer or law firm controls the final product—the exact words and when and where the advertisement or advertorial appears.
 
According to the incoming president of the Council of Public Relations, the U.S. public relations business will be a $4.4 billion industry by 2014, up from $3.4 billion this year.
 
Showcasing legal expertise through consistent public relations is a powerful business development tool that brings visibility and, more importantly, credibility, which ultimately leads to more business. Public relations initiatives can help a law firm maintain/improve its image, increase brand recognition, bring in new clients and position it or its practice groups as thought leaders and experts in key target markets.
 
The most common reasons cited by attorneys for not incorporating public relations into their marketing include not understanding the media, not having the skill set, the cost and time. The irony, of course, is that both groups need each other for their work. Reporters are continually seeking sources for their stories, and attorneys need to get more than their qualifications out in the market place. In other words, they need to get known, liked and trusted in their target market.
 
Here are a couple of things to bear in mind when considering public relations:
 
Who should handle PR?
That really depends where the firm is starting from and what the firm’s long-range strategic objectives are. Public relations can be handled in-house by one or more lawyers, externally by a consultant or agency, or by the two working in tandem. Typically, responsibility for media relations often falls to a marketing department or administrator. Most large firms with very public profiles have staff devoted exclusively to media relations, but they also work with public relations agencies. Like most disciplines, public relations is not rocket science but requires both practical and people skills. Having a background in journalism equips one to have a proactive approach to public relations rather than waiting for the press to call you.
 
So how do you look for external help to either supplement in-house initiatives or outsource them? First, let’s be clear: legal marketing is an exploding area. There are loads of subpar PR firms. The trick is to find a gem among the crowd. Remember, the goal is to land positive and meaningful mentions of partners/lawyers in targeted publications that clients and prospects read or watch. If your new PR partner spends three months getting to know you, dissecting your "value proposition" or learning how the legal industry works without sending out a single pitch or press release, money has been wasted. Typically, within the first month, a good PR firm should prove its grasp of your business and formulate a strategy in writing that details explicitly whom it will target and what message it will communicate.

The services should include rooting out the most scintillating story angles (this requires some elbow grease and full participation of law firms) and matching those up with the most receptive media organizations. The hows of this will vary depending on the experience of the PR agency or consultant. For example, given the Obama administration’s current efforts to extend the Bush tax cuts, tax lawyers should be working at a feverish pace with a public relations agency to pitch stories to dailies and industry publications.

Public relations retainers vary depending on experience, size and location of the agency. For large law firms, retainers will range from $30,000 to $5,000-plus a month. This is where the consultant or agency is taking a very proactive approach with the media, looking for opportunities for their clients to be quoted, coming up with story ideas and building a solid track record with reporters who cover the particular area. Then there are other services geared specifically for firms who not ready to commit to retainer public relations but want to get their feet wet at a fraction of the cost.
 
Having clear expectations
Whether you do your own public relations or you work with an agency, having clear expectations from the outset will prevent misunderstandings. But just as important is the firm’s commitment from the top down to make the public relations efforts work.

The worst offenses of law firms when it comes to public relations include:
 
·    Expecting to be quoted in top-tier media outlets such as the Financial Times, Wall Street Journal, CNBC and CFO magazine within a month of working with the agency or consultant.
·    Taking the backseat, the assumption being that the PR firm must do all the work. Untimely input or no input from attorneys on story ideas and/or the latest legislative developments will impede rather than help public relations professionals pitch stories to reporters.
·    Not valuing the work of the PR professionals (Failure to do so, or to understand some of the components of the PR work will make it more difficult to work cohesively as a team.)
·    Lack of understanding about the basics of media relations. (The traditional relationship attorneys have with the media contains elements of animosity, most of which is due to a lack of understanding of each other’s role.)
·    Attorneys not improving their skills, such as honing the delivery of presentations to target groups and practicing interview techniques for speaking with reporters.

You can’t buy good PR
Remember, good publicity is literally something you can’t buy. Law firms of all sizes realize this and have become increasingly eager to incorporate public relations into their business development and marketing objectives. However, these efforts often fall short. For example, many smaller law firms have office managers handling public relations. Larger firms of 10 or more often assign this task to their marketing managers. A half-baked approach to any form of business development will yield half-baked results. Nowhere can such an approach hurt a firm more than when one of its lawyers talks to reporters without the proper training.

Post Courtesty of Paramjit Mahli of SCG PR Network, a network connecting attorneys as legal experts accross the globe.

Come see January 25th! The legal battle of the century with hard-hitting defense attorney Benjamin Brafman and former prosecuting attorney Marc Agnifilo! Find out skills used on both sides of the bench to win the case! Benjamin Brafman, defender of high profile clients such as Plaxico Burress and Michael Jackson, and Marc Agnifilo, former New York prosecuting attorney, go head to head to discuss their winning strategies. Learn from the best!

In the first half of the evening , Brafman will detail the process of defending a client in a criminal case, and strategies you can use to beat the prosecution. Then, Agnifilo will discuss tips to convict, providing personal strategies of poking holes in the defense's case.

The second part of the evening starts the heavyweight match between attorneys in a real simulated criminal trial. At the end of the night, only one attorney will be victorious, and you will decide! 

Want to learn more?

While the guiding principals are clear and unambiguous, the facts and calculations underlying this matrimonial legal malpractice case are daunting.  Holding companies, general partners, intra-company transfers, straw-men and the like make the financial analysis difficult.

Justice Ramos, in TPR Inv. Assoc., Inc. v Fischer;  2010 NY Slip Op 33370(U);  December 9, 2010;  Supreme Court, New York County;  Docket Number: 603509/07 teases out whether the wife may sue the attorneys over their handling of a international net of financial transactions, including the "missing million."  Rather than re-cap the financial shenanigans, we look at the guiding principals:
 

Post courtesy of the Blustone Law Firm

Derek Jeter recently signed a three-year contract worth up to $65 million to continue playing baseball for the New York Yankees.  At the official announcement, Jeter expressed anger that the Yankees had asked him to “go shop” himself to other teams even though Jeter told them he only wanted to play for them. He was also angry this became public knowledge.

Why would the Yankees do this?  Given Jeter’s age and known preference to stay in New York, the Yankees expected other teams wouldn’t aggressively pursue him.  The Yankees could then use this outcome (an “objective” reflection of Jeter’s market value) to justify their position.  Of course, they risked another team shooting for the moon in an attempt to lure Jeter away and also angering Jeter to the point where it could harm their long-term relationship.

Since the deal was successfully concluded, it appears the Yankees’ gambit may have paid off. Of course, we won’t really be sure until we see how Jeter produces over the course of the contract.

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Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts' proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com.

A report in the Boston Globe details the implications of a verdict in the wrongful death suit brought against tobacco com pany Lorillard Inc., by the estate of Marie Evans who died of lung cancer in 2002. Evans' estate was awarded $152 million by the jury, signaling that "tobacco litigation is still alive and well" according to Michael Siegel of the BU School of Public Health. Despite the Tobacco Master Settlement Agreement that settled lawsuits filed against tobacco companies by states, individuals can still take legal action agaisnt tobacco companies and thousands of these lawsuits are pending. The huge award in the Evans case could have a ripple effect on court decisions and public policy decisions across the country, as smokers weigh whether to file their own lawsuits and federal officials consider a ban on menthol cigarettes.

for the full story, click here
for more on personal injury litigation, watch Fundamentals of Personal Injury Practice

December's end is fast approaching and with the end of the month 21 states are reaching the end of their CLE compliance period. Many attorneys have been panicking, not sure about their state's law or not sure how many credits they are required to take. See below for a list of states that have a compliance deadline of December 31st.

If you are an attorney in one of these states and have not finished your CLE have no fear, the link at the bottom of the page will allow you to purchase unlimited CLE for 1 year with a fantastic discount, allowing you to take care of your online CLE hassle-free! Click on your state to see compliance and credit requirements:

1. AL

2. AK

3. CO

4. DE

5. GA

6. HI

7. ID

8. IN

9. IA

10. LA

11. NV

12. NJ

13. NM

14. NC

15. OH

16. OR

17. PA

18. TN

19. WA

20. WI

21. WY

Click here to get 1 Year Unlimited CLE for 40% off, only $299!

The BBC reports that shares of BP stock fell after the US government announced that it would be suing the company under the Clean Water Act and the Oil Pollution Act. The government is seeking to hold BP (and 8 other firms) liable for the total cost of the clean-up efforts. If the courts find that the company had been "grossly negligent", it could potentially cost BP an additional $16 billion in penalties. The US Attorney General's suit alleges that the explosion of the Deepwater Horizon rig was caused by "violations of safety and operational regulations". However, as of now, it seems that investors do not think the Department of Justice's case against BP has increased potential liabilities for the company in a fundamental way and that BP will be able to recover the money it incurred in clean up efforts despite the almost $40 billion the company has set aside to cover the costs of the disaster.

for the full story, click here

For more information on other environmental law issues, watch Sustainability is Smart Business: A Legal Perspective

Although a federal Judge in Virginia ruled on Monday that part of the health care reform law (the section requiring Americans to buy health Insurance) was unconstitutional, most supporters of the law, including President Obama, seemed unfazed by the decision. The Justice department said it planned to appeal the decion to an appelate court, and it is likely that the battle over the healthcare law will continue in the federal courts until it finally reaches the Supreme Court. The judge sruck down the insurance-requirement mandate (because it oversteps Congress's powers under the commerce clause), but did not grant an injunction against the law and did not find any other part fo the law unconstiutional.

for the full article, click here
 

According to  a report in the Wall Street Journal, FedEX won a class action case against drivers who claimed they were improperly classified by the corporation as "independent contractors" and were therefore divested of benefits they should have gotten as company employees. The suit was brought in Indiana, and the federal judge ruled against the drivers in most of the cases. However, in previous lawsuits FedEx was found to be improperly using the independent contractor model, which the company an advantage over rival UPS, whose drivers are unionized.

for the full article, click here

for more on employment classification issues watch our top-rated course "How to Handle an Employment Law Case" by Murray Schwartz, Brian Heller, and Matthew Schatz

It has been 2 years since the Madoff Ponzi scheme, possibly the biggest investment fraud in history, came to light, and the deadline for legal efforts to recoup investors' losses came up last week. Madoff's large, global scheme ensnared hundreds of people who are now either pursuing litigation or defending themselves from litigation in connection with the case. most of the other legal cases that the ponzi scheme generated are civil suits filed by Irving Picard, the court appointed trustee who is overseeing attempts to recoup losses. Among the suits filed are a $6 billion suit against JPMorgan Chase, and suits against well known investment advisors. Many of those being accused, however, point to their losses and say that they were also victims of the ponzi scheme, and not complicit in it.
So far, only 8 people have been criminally charged (including Madoff and 7 of his closest business associates) , but as the statute of limitations on the Madoff case doesn't run out for another 3 years, more criminal charges might be made now that recovering money is no logner the focus.

For the full story, click here

For more on the Madoff Case and other financial crimes, watch White Collar Crimes: The Notable Cases of 2009

The US Senate unanimously agreed in early December that lawyers should not be covered by the FTC's new Red Flags Rule. The rule, originally passed by congress in 2003, broadly used the term "creditors" to include anyone who sells a product or service for which the consumer can defer payment, writes co-chair of Moses & Singer's Legal Ethics & Law Firm Practice division Devika Kewalramani.

The ABA took up a suit, along with several state and local bar associations, against the FTC for attempting to unlawfully regulate their profession. The suit argued that the FTC's position too broadly applied the "creditor" status by stating that professionals were creditors when they allow customers to pay for services after they were performed. The rule then required any business or individual that was a creditor to implement programs to prevent identity theft.

The ABA is still awaiting a ruling from the D.C. Circuit to affirm the district court's ruling. 

Devika Kewalramani is a partner at Moses & Singer and is also a Lawline.com faculty member who specializes in lectures on ethics and professional conduct for law firms. To learn more about recent ethics changes in New York you can watch Kewalramani's top-rated course "New York Ethics- The Amendments of 2009."  To read Devika Kewalramani's full article on the current status on the FTC Red Flags Rule, click here. 

With healthcare being such a hot topic, it is important to understand that the largest uninsured group by percentage is those between the ages of 19 and 29. This is the case largely because the group has historically been too old for insurance under parental plans and too young to afford or be eligible for plans of their own. While the Obama healthcare plan does offer extensions for this population, the group will still have millions left uninsured.

Family law attorney Marguerite Royer says in a recent article that because of this consideration, express agreements should be made between parents during divorce to ensure young adults maintain their insurance coverage. It cannot be left to the dictate of the courts because courts can only direct a parent to maintain care until the age of 21. After the age of 21 it generally falls on the custodial parent or the young adult to pay for care, unless otherwise agreed upon by the parents. 

Marguerite Royer is a family law attorney at Moses & Singer and she discusses more about the new healthcare law and its connection to parental agreements and divorce cases in her article “Healthy New York: Extending Health insurance Coverage to Young Adults in Divorce Settlement Agreements.” Ms. Royer is also a Lawline.com faculty member, and her newest course “Why Would an Attorney Want to Practice Collaborative Law” focuses on the benefits of innovative dispute resolution techniques. 

Read Marguerite Royer's article

Watch Marguerite Royer's course

According to an article in the Times, an immgiration issue that has gotten little attention deals with minors who come into the country illegally and suffer abuse. According to the Times, dealing with and talking about being abused is difficult enough ordinarily, but becomes even more complicated when these children fear that going to the authorities  will lead to detention or deportation, particularly if they see returning to their home countries as a worse option than remaining in an abusive situation.

However, in these cases it is possible to apply for Special Immigrant Juvenile Status, a 20 year old federal statute, which is not widely-known. To qualify for SIJS, applicants have to be under 21 and unmarried,  prove that it is not in their best interest to return to their country of origin and that reunification with one or both parents is not possible due to abuse, abandonment or neglect. They also have to have been in foster care or declared dependent on the juvenile court.

A lawyer initiates the SIJS application process by drafting an affidavit charting their client's abuse. the child then testifies in juvenile court and if a judge decides they qualify for SIJS they apply for SIJS and permanent residence with Immgiration Services.

The US Chamber of Commerce has joined civil rights groups to challenge the constitutionality of the Legal Arizona Worker’s Act, which severely punishes employers for knowingly hiring illegal immigrants.  The suit argues that the laws are conflicting with existing federal laws; and, according to a brief filed by the US Justice Department, the state laws are generating confusion among employers and employees because they are at odds with federal guidelines.  For example, checking the immigration status of employees through the E-verify database is mandatory under the new Arizona law, but is strictly voluntary under federal law.  

The Supreme Court is set to hear this case on Wednesday, and the ruling on this case is being watched carefully by those who are interested in challenging Arizona’s other controversial immigration law: the one requiring police to ask for papers from anyone they think might be in the country illegally. The legal challange  in this case is whether states and cities can enforce their own laws against illegal immigrants, or whether they must they have to leave immigration legislation up to the federal government.

For the full story, click here

For more on what employers should know about Federal Immigration laws, watch Immigration Compliance in the Age of Enforcement

In 1938, psychologist Gregory Razran found that his subjects developed a more favorable view of the people and things they experienced while they were eating – a result Razran coined as the “luncheon technique.”

So the next time you have an important negotiation, consider having lunch or dinner with your counterpart first. And consider picking up the tab to engage the reciprocity rule, which psychology professor Robert Cialdini describes as the human tendency to want “to repay, in kind, what another person has provided to us.” In other words, to return the favor – perhaps as soon as in the subsequent negotiation.

Most of us have a strong desire to appear consistent. Consistency is valued in our society and is associated with other positive traits like honesty, stability and intelligence. Similarly, most of us will go to great lengths to fulfill our commitments. Psychologist Robert Cialdini calls these tendencies the Commitment and Consistency Principles.

Why do most of us share these tendencies? Consider the unattractiveness of the contrary – few would want to deal with a counterpart with a reputation for acting inconsistently and leaving commitments unfulfilled.

In the negotiation context, these principles can be a powerful behavioral motivator. Good sales professionals know if they can get a small commitment from a potential customer, a foot in the door so to speak, that customer’s natural tendency will be to act in a manner consistent with their original commitment.

Also, if you discover your counterpart previously acted in a way consistent with the outcome you desire, point it out to them to take advantage of the power of these principles.

Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts' proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com.

In a recent post on The Bright Spark, a blog authored by UK barrister James Abrahams, the question of whether a single tweet is copyright protected was discussed. There is no doubt that Twitter is a growing medium for spreading news in a global community and with this growth comes a variety of important legal questions, including the one raised by Abrahams. 

Although there has been a global explosion in Twitter use, the copyright question regarding tweets is hotly debated. On one side of the argument is that the content posted on twitter, being limited to a meager 140 characters, is too small to be protected. On the other side, the side endorsed by Abrahams, is to say that even short works should and would be protected under copyright (a haiku for example.) 

To learn more about the special circumstances that a growing social media world creates in the legal community, you can watch our top-rated course on social media by Ronald Coleman. Ronald Coleman is an expert copyright attorney and avid Twitter user who frequently lectures on Lawline.com in this area. His course "Social Media and the Law: What Attorneys Should Know" examines the ever-expanding world of social media as it relates to attorneys. 

Watch Ronald Coleman's course here

Read the full article from The Bright Spark

Read Why Twitter Matters by Guardian editor Alan Rusbridger

CBS news reports that attorney general Eric Holder is considering taking legal action against Wikileaks, the website that published sensitive classified information from the US State Department on Sunday.

Holder said that the US government believes that crimes have been committed by the website and they are investigating these crimes.  The administration has ordered a government-wide crackdown on how classified information is handled to try to make sure these leaks don’t happen again.

However Wikileaks is already in possession of thousands of documents that they plan to release over the coming months. Press Secretary Gibbs stated that the leak "is a serious violation of the law”, however which laws apply to this case will be difficult to determine, since many laws against espionage date back to WWI, and don’t cover internet leaks, and because the site's founder is an Australian Citizen living abroad. 

For the full story, click here

To learn more about the process of discovery watch our top-rated course "E-Discovery: Law, Practice, and Strategy"

Today only Lawline.com is celebrating Cyber Monday with an offer of Unlimited CLE for 2 years for only $299! This is more than a 50% discount, but we're hoping that anyone who wants or needs to take care of their CLE for the next several years will love this one-time only deal! 

Lawline.com is accredited in 40 states and is continually adding new fresh courses in areas that interest attorneys across the country. With over 400 courses and growing, our course catalog offers a great reference guide for attorneys with clients in a variety of industries. All courses are available at your fingertips the instant you purchase online.  

It's never too early to take care of your CLE credits, and with this great deal for Cyber Monday you can get CLE taken care of for years to come! Sign up today!

Click to sign up for 2 Years Unlimited Access

A Bloomberg report out today describes the coming showdown between Apple Inc and Nokia Oyj over intellectual property violations in mobile phone technology. Apple is going up against Nokia (and also Motorola Inc and HTC corp in separate law suits) in hopes of cornering the US smart phone market. Apple is trying to shut out its rivals (especially those that run on Google’s Android operating System), while maintaining its ability to import the iPhone. A lawyer who handles cases that come up before the International Trade Commission, mentioned that the case is unusual because usually lawsuits are brought by established industry giants against start-ups, but in the present situations its two well-known, deep pocketed companies going against each other.

Initially Apple (the most sued company in the world) was sued by Finland-based Nokia for patent infringement, however, Apple counter-sued and made claims that Nokia phones infringed on Apple’s patents and is seeking to get them blocked from the US market.

For the full article, click here

For more on patents in an international context, watch : International Copyright: What the U.S. Practitioner Needs to Know

SCG Legal PR Network was named a finalist in the Best New Service of The Year category in the 7th annual Stevie Awards for Women in Business. The Stevie Awards for Women in Business honors women executives, entrepreneurs, and the companies they run worldwide. 

This is a great honor, as the competitor pool was bigger than ever, over 1,200 companies were competing in 54 categories, including Best Executive, Best Entrepreneur, and Best Community Involvement Program. Nominated women executives and entrepreneurs from the US and other countries attended the ceremony, where winners were crowned. 

SCG Legal PR Network is a global network focused on connecting lawyers as expert sources with reporters. Among their team are award winning journalists whose experience spans 3 continents and over 30 years of experience in journalism and public relations. The founder and CEO of SCG is Paramjit Mahli, who worked for years in journalism including with the Financial Post, CNN, CNNfn and the Journal of Commerce. 

As a frequent contributor to Lawline.com’s blog, Ms. Mahli’s skills are no secret. Her contributions have focused on the important skills and techniques for attorneys who have global clients. Mahli shows that not only large firms should have global clients; small firms also need to be prepared for the circumstances of global work.

Click to read Paramjit Mahli's last post

About SCG Legal PR Network

SCG Legal PR Network is a global network that connects lawyers as expert sources with reporters and features a 24/7-accessible database of legal experts from a variety of areas. Its team is comprised of former award-winning journalists whose experience spans over three continents and 30-plus years of experience in the field of journalism and public relations. The network was started by a former journalist, Paramjit Mahli, who has worked within news outlets like the Canadian Broadcasting Corporation (CBC), Financial Post, CNN, CNNfn and The Journal of Commerce. For more information about the SCG Legal PR Network, please call 212-661-9137 or visit SCG Legal PR Network’s Web site at http://www.scglegalprnetwork.com.

With the passage of the New York no-fault divorce law, signed by Governor Paterson in August, the state becomes the last of all 50 to allow no-fault divorce. Prior to the enactment of this law on October 14th, New York was the only state that required fault before allowing dissolution of marriage. 

Because the past law required fault, many married New Yorkers were in essence required to perjure themselves in order to get divorced. The old law also increased the amount of time spent litigating these cases, increasing court costs and making the proceedings very difficult. 

However, the new law reduces the amount of time required of divorce lawyers and makes the process much simpler. In a new course from lecturer Arlene Dubin, a family law attorney at Moses & Singer with more than 25 years experience, discusses the implications of this new law for attorneys in her new course "An Overview of No-Fault Divorce Law in New York."  

Watch Arlene Dubin's New Course "An Overview of No-Fault Divorce Law in New York"

USA Today reports that the Supreme Court will vote on Tuesday whether they will hear Wal-Mart's appeal in a huge civil rights class-action lawsuit brought against it by thousands of its female workers. If the Court judges this case, it could affect the legal balance between corporate interests and workers' rights; the fact that business groups and big corporations, including the U.S. Chamber of Commerce, have filed briefs on behalf of Wal-Mart urging the justices to step in, indicates how important this case is for the business  community.

The discrimination case was actually originally filed in 2001, by 6 women who accused the corporate giant of sex discrimination in pay and promotions and general gender stereotyping and discrimination. They were told by a trial judge and by the U.S. Court of Appeals that their case would be better litigated as a class-action suit, than an individual bias lawsuit. Due to the change in the nature of the lawsuit, the legal issue is now not whether Wal-Mart discriminates against women, but whether the class-action claim is legitimate. Wal-Mart is arguing that the lower courts violated federal rules for class actions.

If the class-action lawsuit is allowed to proceed, this could be one of the biggest class-action suits on the books, covering anywhere from 500,000 to 1.5 million of Wal-Mart’s employees.

For the full article, click here

For more on litigating an employment discrimination claim, listen to Key Considerations in Selecting an Employment Discrimination Case

A very Interesting article in the New York Times this week raises an interesting ethical issue currently developing in the legal profession. It seems that banks and hedgefunds have moved on from investing in real estate and are now seeking to turn a profit by investing in other people’s lawsuits. Investors are funding malpractice suits and class action battles in the hope of sharing the potential awards. Industry experts have estimated that investment in lawsuits now exceed $1 billion. The practice of borrowing by plaintiffs and their lawyers is the result of the high cost of litigation: some people can’t afford to pursue their case at all and others are shut down by their deep pocketed opponents.

On one hand, borrowing money from lenders allows people to at least have the opportunity to fight their case and gives them access to well-paid experts and elaborate evidence, helping to ensure that cases are decided by merit rather than by resources. However, this practice also has the potential for abuse, including instances where investors initiate and control the lawsuit. And of course, these loans also have high interest rates which might end up hurting plaintiffs in the long run (if, for example, they end up owing the lenders more money than they receive from their case).

For the rest of the article, click here

For a discussion of other ethics issues to consider when runnign a law firm, take a look at How to Ethically Manage a Law Practice

The Florida Supreme Court issued a memorandum on Wednesday, November 17, to ensure that all foreclosure proceedings are open to the public. The response from the Supreme Court came after the ACLU and various media outlets raised concerns about the transparency of these proceedings. Florida law states that these proceedings are open to the public, but the ACLU and others were concerned by reports across the state that proceedings have been taking place behind closed doors. 

In reaffirming the law, Chief Justice Charles Canady stated “the courts of Florida belong to the people of Florida. The people of Florida are entitled to know what takes place in the courts of this state. No crisis justifies the administrative suspension of the strong legal presumption that state court proceedings are open to the public.”

To learn more about bankruptcy proceedings watch our top-rated course by Daniel Gershburg "Chapter 7 Bankruptcy: The Initial Consultation"

For the full story, click here

Lawline.com’s second annual faculty event kicked off with great success last night, November 17, at the Hudson Terrace. The night was dedicated to Lawline.com faculty who do so much to bring the highest level programs to attorneys all over the country. Lawline.com employees and faculty alike showed their elation at the success of the company, happy to bring important material to such a wide audience. 

With the support of great programs and presenters in 2010, Lawline.com has pushed to new heights with over 250 new courses and 140 faculty members. These programs are watched in 40 states by thousands of attorneys. The phenomenal growth of Lawline.com has only been possible with the excellent content provided by faculty members, who have gone above and beyond to bring programs that are timely and relevant to practicing attorneys nationwide.     

Awards were given to the six faculty with the most popular or unique programs on Lawline.com. Ben Brafman, who has defended such high profile clients as Michael Jackson and Plaxico Burress, was given a lifetime achievement award, as he was one of the first presenters at Lawline.com in the late 1990s. Ardra O’Neal, a highly skilled and experienced attorney in the area of labor and employment law, accepted an award for Best Lawline.com Customer-Turned-Presenter. Also accepting awards were Rocco Cipparone, for Most Popular New Presenter, Melissa Gomez, for Best Non-Attorney Presenter, and Andrew Smiley, for Most Creative Presenter.

Lawline.com President David Schnurman was clearly touched by the turnout. He thanked the faculty for helping him develop and expand the company, bringing more attorneys’ knowledge and experience together. Schnurman also took a minute to mention new Lawline.com products, like the mobile app that is set to be released at the end of the week for iPhone, iPad and other smart phones. Looking forward Schnurman expects to continue growing Lawline.com in 2011, always looking for a better way to bring attorneys the highest quality programs and information that affects them. 

According to the Guardian, Arianna Huffington and Ken Lerer, co-founders of the Huffington Post, are being sued by their former partners, Peter Daou and James Boyce, who claim they own part of the company. According to the lawsuit, Huffington and Lerer presented the ideas of Daou and Boyce as their own in order to raise money for the website, and later breached their promise to work with Daou and Boyce in order to develop and work on the site together.

Huffington and Lerer have dismissed the case as an extortion attempt, saying Lerer and Daou have been trying to get money out of them for months and have never had anything to do with running or creating the company: the pair had proposed to work with Lerer and Huffington when the site was getting started but were rejected.

To read the full story, click here.

For more on legal issues that can affect websites, watch  How To Protect Websites From Legal Liabilities

Frisbee producer Wham-O is bringing a case to the US Court of Appeals for the Federal Circuit challenging a statute that allows whistleblowers to sue companies for falsely labeling their products as covered by patents. 

The plaintiff of the suit, FLFMC, originally brought the case against Wham-O and it was dismissed in early August by Pennsylvania District judge Arthur Schwab. Schwab based his dismissal on FLFMC's inability to show that Wham-O’s false patent marking caused any “actual or imminent injury.”

But, confidence that the argument made by Wham-O attorneys will hold up in the Federal Circuit Court is low because of the precedent set on August 31 by the Court in Stauffer v. Brooks Brothers Inc. The Stauffer court held that whistleblowers can have standing even without identifying any specific injury.

The new argument being brought by Wham-O is a constitutional challenge that the false marking statute fails to provide the necessary supervision required for a litigant who purports to enforce criminal law on behalf of the US government. During false-marking cases there is no way on the forms to notify the government that the case involves false markings, Wham-O argues that this “deprives the executive branch of any practical means to take care that the nation’s sovereign interests are represented in court.”

The founder and principal of Periconi LLC, famed New York environmental attorney and Lawline.com faculty member James Periconi was recently named Superlawyer of environmental law in the fall 2010 issue of Superlawyers. The publication selects featured attorneys based on the review of their peers and independent research in a variety of categories. 

James Periconi has tremendous experience in the areas of environmental law and environmental litigation. His practice is small but he has shown that a small firm can have large corporate clients. Periconi is a former Chair (2003-2004) of the Environmental Law Section of the New York State Bar and was the first Chief of Hazardous Waste Enforcement in the New York State Department of Environmental Conservation.

The courses Periconi has taught at Lawline.com provide attorneys with a wide variety of important information about recent developments and changes in environmental law (New York Update: The Indoor Air Landlord-Tenant Notification Law) as well as providing advice about the importance of environmental concerns in a real estate transaction (Environmental Due Dilligence in Real Estate Transactions: Part 1 and Part 2). 

Periconi’s insights into recent developments of environmental law and practical advice on complying and using these laws make any of his top-rated courses perfect for attorneys interested or concerned about environmental issues. 

Watch "New York Update: The Indoor Air Landlord-Tenant Notification Law"

Watch "Environmental Due Dilligence in Real Estate Transactions: Part 1"

Watch "Environmental Due Dilligence in Real Estate Transactions: Part 2"

An article in the Wall Street Journal today describes how the recession is leading law firms to offer a new pricing structure for their services. Many law firms are now charging small businesses flat fees , rather than charging them buy the hour. Some law firms are charging by the month, others are charging a set amount for certain services. Changing the payment method is helping some firms drum up more business from businesses who can no longer afford an hourly fee schedule.  Not only are these new payment plans more affordable, but they are also more predictable which is a great help to small businesses on a tight budget. Firms that have started offering this new pricing system, say that it has improved business because the flat fees raise the comfort level of potential clients and foster continuing relationships with them (previously, many of the small business owners who would come in for a consultation would be scared off by the hourly fees).  However, there are drawbacks to this system- lawyers set limits to the amount of work and the type of work that is covered by these flat fees, usually excluding the more time consuming legal work that may be required (such as litigation and tax advice). Some lawyers also insist that for discount-rate clients, most of the work is done over the phone or over email.

For the full article, click here

For more advice on increasing business for your law firm, check out: How to Run a Small Office Ethically and Profitably

The internet may seem lawless and anonymous, a free forum where people can share ideas and comments without fear of retribution. But, according to Julian Glover, who commented in his article in the Guardian “The Web May be Lawless, But it Won’t Stay That Way,” it will not be lawless for long. We are already seeing the beginning of law and how it will shape the landscape of the internet as the veil of anonymity pulls back. Glover argues that today’s internet activity is akin to the first motorways before speed limits. People could drive as fast as they wanted without thinking about being caught or paying a hefty fine.

But the days of anonymity on the internet are screeching to a halt. Especially after the advent of new social media sites like Twitter, people are learning they cannot use the internet to live parallel but separate lives; these cyber-identities are not free from legal consequences. Several recent cases have illustrated the growing liabilities of forgetting this important distinction. 

Last week, a Tory councillor was arrested for stating on his Twitter page that he wanted columnist Yasmin Alibhai-Brown stoned to death. Another man was convicted and lost appeal after declaring on Twitter to 600 followers that he wanted to blow up his local airport. What may seem like empty absurdities or harmless venting has become of very serious concern to law enforcement and sends a strong message that even without rigid statutes or strong legal precedent the law does cover online mischief. 

Unfortunately many people, attorneys alike, do not have the important knowledge and experience necessary to manage a successful retirement plan. Whether it’s a 401(k), 403(b), or 457(b) the rules are quite complex and anyone looking for financial security after retirement must carefully choose who will manage their plan. 

That is why experienced ERISA attorney Ary Rosenbaum has spent the past 12 years perfecting his craft. He says that too often people use their payroll provider to run their 401(k) plans, which is a mistake. He strongly advises against putting your retirement plan in the hands of your payroll provider, and he gives several poignant reasons in his popular article featured on JDSupra entitled “Why you Shouldn’t Hire Your Payroll Provider to Run Your 401(k) Plan.” 

Rosenbaum follows an important rule in business, “I stick to what I know.” And his expertise is in retirement plan and ERISA issues, which he discusses in his new course on Lawline.com entitled “How to Help Your Clients Avoid the Pitfalls of 401(k) Plans.” One of the many pieces of advice he gives is to avoid allowing third party administrators to run your plan. He says that because they are not trained to be experts in the complex issues related to retirement plans, they should not be given the responsibility of dealing with them.

To learn more about the successful 401(k)s watch Lawline.com’s exclusive new episode by Ary Rosenbaum,“How to Help Your Clients Avoid the Pitfalls of 401(k) Plans”

Read Ary Rosenabum's article on JD Supra "The Myth of Free 401(k) Administration"

Read Ary Rosenbaum's article on JD Supra "The Top Ten Major Misconceptions Plan Sponsors Have About Retirement Plans"

The 9th Circuit US Court of Appeals on Tuesday set a precedent requiring the government to provide important files to those facing deportation proceedings. In this case, Salazar Dent was not given his A-File, a file that maintains important official records such as naturalization certificates and petitions for benefits. 

Sazar Dent, who claims he was adopted by a Kansas woman who rescued him from the extreme poverty of his native country, was not given his A-File by the government during deportation proceedings. Routinely, the A-File is not given because often aliens don’t know the process of requesting files. The court held that the A-File must be given because in many instances it is integral for proving immigration status. 

The opinion of the court, written by Judge Andrew Kleinfeld, interprets the statute in a manner that requires the government to turn over files even when they have not been requested. The government argued that Dent could receive the information by filing a Freedom of Information Act request. However, the court ruled that filing a request takes too long; it would be unconstitutional to entitle an alien to his A-File, but deny access until the file is no longer useful.    

Facebook is suing yet another website that uses the word “book” in its name, in order to protect it’s brand, reports the LA Times. This time Facebook wanted to go after “Lamebook”, a spoof site which makes fun of status updates, comments and other things found on Facebook. Facebook didn’t seem to find the site funny and threatened to take its creators to court.  Lamebook beat them to the punch however, and filed a lawsuit against Facebook, seeking protection under the 1^st amendment. Their rationale is that because the site is a parody, it does not infringe on Facebook’s trademark.  Facebook countersued Lamebook, saying Lamebook is not a legally protected parody.

For the story click here

for more on copyright law on-line, take a look at : Trademark Protection on the Internet

The LA Times reported yesterday that the US Justice Department will not be charging the CIA officers who destroyed videotapes of suspects being waterboarded, but a special prosecutor will continue to investigate whether treatment of Al Qaeda detainees was within legal bounds. No charges were filed in connection with the destruction of the tapes, but Atty. Gen. Eric H. Holder Jr., who investigated whether CIA officers violated the law in the course of the interrogations found that interrogators sometimes exceeded the legal guidance for how often certain techniques could be used. Jay S. Bybee, the former head of the Justice Department's Office of Legal Counsel, had outlined the circumstances under which waterboarding would be allowed in a legal memorandum.

Robert S. Bennett, the attorney for the CIA agent who ordered the tapes destroyed, described his client as an "American hero… a true patriot who only wanted to protect his people and his country." But Anthony Romero, the executive director of the American Civil Liberties Union, called the failure to file charges "stunning."

The Justice Department announcement did not rule out the possibility that officers could be charged with lying to investigators in the matter. That investigation has angered many current and former CIA officers, who say it sends a message that conduct sanctioned by one political administration can be criminalized by another.

For the full article, click here

At least 10 lawsuits have already been filed as a response to a salmonella outbreak. The outbreak has been traced to two large egg farms in Iowa but attorneys say they know of hundreds of potential cases. However, attorneys say it would be difficult for most to win a lawsuit even if they got sick. 

Seattle attorney Bill Marler is experienced filing lawsuits related to diseased food and has already filed 6 lawsuits in Iowa against large egg farms. However, he says the road is difficult because it is hard to prove the connection between a particular eggs and sickness. 

There are hundreds of cases being filed in response to last summer’s salmonella outbreak, but many of them will not get filed because of the difficult legal work they require. The Centers for Disease Control and Prevention has linked 1, 600 illnesses to the eggs. 

To learn more about product liability cases watch our popular new course by Bruce Manos "Successful Defense of the Product Liability Case"

For the full story, click here

On Friday November 5th, the Nebraska Supreme Court declined to rule on a local ordinance banning the hiring, harboring or renting of property to illegal immigrants. The dispute grew around whether Fremont Ordinance 5156 violates state law by mandating that those seeking to rent or lease a house acquire a permit from the city first. The ordinance is meant to prohibit those who are in the US illegally from obtaining the permit, thus preventing them from renting or leasing property. 

The US District Court for the District of Nebraska asked the Nebraska Supreme Court to review the legitimacy of the law, but the Supreme Court declined to answer the question. Instead, the Court held that there is no reason to answer the question for the District Court, as the question is not one of interpreting any state law but is of the constitutionality of the law. As a result, the city of Fremont has suspended the enactment of the ordinance until the district rules on the matter. The city has raised property taxes to fund the legal battle. 

Immigration issues have come to the forefront of US politics recently, with the controversial Arizona law SB 1070 sparking a nation-wide debate. Last week, the Ninth Circuit heard its first oral arguments on the Arizona law’s constitutionality. The controversy stems from many in the public who have growing concerns that federal officials are not taking immigration issues seriously enough. However, the US has deported a record number of illegal immigrants in 2010, according to an announcement from the Department of Homeland Security. 

To learn more on immigration law today watch our top-rated course by Gilbert Ferrer, Eugene Glicksman, Jeffrey Heller, and Linda Kenepaske "What You Need to Know to Practice Immigration Law Successfully- Family-Based Immigration, Immigration Defense of Removal Proceedings, Asylum and Practical Tips"

To read the full story, click here

Walgreens filed a trademark infringement lawsuit against Wegman’s supermarket on Oct. 27 at a federal court in Virginia. Walgreen’s is claiming the “W” in the logo Wegman’s started using a few years ago is too similar to the “Walgreen’s” logo and could lead customers to assume the 2 stores are connected. Walgreens argues that the “flying W” it uses in its logo should be protected because it has been in use since 1951. Wegman’s counters with the fact that their logo redesign is really based on an older Wegman’s logo from 1931 and wasn’t taken from Walgreen’s.

From the whole story, click here

For more on trademark legal issues, watch Corporations and Trademarks by : Amy Goldsmith and George Gottlieb

A report by the Los Angeles Times discusses the ramifications of the case, AT&T Mobility vs. Concepcion, which is set to go before the Supreme Court next week. The crux of the case is whether companies can bar class action suits in the fine print of their take-it-or-leave-it contracts with customers and employees.  If the court sides with AT&T, this will have sweeping consequences for businesses and consumers, since it would mean that any business that issues a contract to customers would be able to prevent them from joining class-action lawsuits, thus taking away one of the most effective legal tools available to plaintiffs (especially in cases where the compensation is relatively small). Should this happen, many argue that it would make it easier for businesses to engage in deceptive practices, since they would be much less afraid that consumers would actually pursue legal action if class-action is not an option. Furthermore, the ability to ban class actions would potentially also apply to employment agreements such as union contracts.

The U.S. District Court for the Southern District of California and the U.S. 9th Circuit Court of Appeals ruled that the class-action ban that AT&T had in its wireless service contracts violates state law and is not preempted by the federal law. AT&T subsequently petitioned the Supreme Court to hear the case, where the results could potentially be different.  William B. Gould IV, a professor at Stanford Law School pointed out that this Supreme Court, which has a generally pro-business outlook, has already “indicated a measure of hostility toward class actions."

For the full article, click here

 to learn more about contract law, watch Anatomy of a Contract by  Jeffrey Helewitz and Hon. Eileen Nadelson

Lawline.com hosted a  live event Wednesday November 3rd with great success. It was a packed house, mostly filled with attorneys just out of law school eager to hear words of wisdom from the lecturers about how to start their own practice. Each of the three lecturers are successful practitioners who realized early on that they did not want to work for someone else, so they took a chance and risked it all with great success. 

Marc Garfinkle, Alan Schnurman and Daniel Gershburg have a wealth of experience on starting a personal practice, and they brought tons of tips for young attorneys on how to turn the idea into a reality. From something as minor as Marc Garfinkle’s tip on stapling, to tips on cutting edge internet advertising from Daniel Gershburg, to advice on staying positive and putting yourself out there by Alan Schnurman, every lecturer had unique and important advice for any attorney tired of taking orders.

Although Lawline.com has never hosted its own live event, the stunning success so far of this 4 part Bridge the Gap series is a good indication that live event series will be a great addition to Lawline.com services. The next topic in this 4 part series is entitled “Now that You Have a Job, How to Excel at It,” and the featured lecturers are Justin Blitz and Olivera Medenica. This event will focus on legal writing and prepping a trial, and it is sure to sell out again. 

With such a successful first event, these lecturers have a tough act to follow. But, Blitz and Medenica have both filmed courses with Lawline.com that were wildly popular, and there is no doubt that the series will continue with enormous success. 

To sign up for the next event, go to lawline.com/gap

Watch Marc Garfinkle’s top-rated course “Going Solo: How to Practice Law Without Getting a Job”

Watch Alan Schnurman's top-rated course "Negotiation: a Tool to Achieving a Successful Outcome in Personal Injury"

Watch Daniel Gershburg's top-rated course "Chapter 7 Bankruptcy: The Initial Consultation"

The Washington Independent posted an interesting article yesterday about the activities of the Republican National Lawyers Association, an independent body of republican lawyers who were monitoring elections in swing states and preparing to help candidates mount legal challenges to election results, if necessary. Caleb Burns, an election-law practitioner, points out that the preemptive preparation for legal challenge is a product of the 2000 election and Bush v. Gore. Although both Democrats and Republicans have their teams of lawyers on call in order to spot voter fraud, the RNLA has been extremely active during this election (training over 1,000 lawyers in election law practices and issuing “Voter Fraud Alerts”) after receiving a large grant from 2 GOP Donors.

The RNLA’s activities have been criticized, however, by people who think that they are designed to stir up fear, discourage voting and set the table for legal challenges in heavily Democratic districts and cities in states with close contests.  But they say that voter fraud is happening, and that republican candidates need to be prepared to fight election results in court, citing Al Franken of Minnesota, who won his election not at the polls but in the courthouse in the weeks after the election.

For the full article, click here

The Supreme Court agreed on Monday to hear a high-stakes patent dispute over university ownership of inventions. This case, Stanford University v. Roche Molecular Systems, may give justices another chance to reign in the US Court of Appeals for the Federal Circuit. 

Top research universities have are joined by the Obama Justice Department in urging the Supreme Court to review this case, citing billions of dollars and thousands of jobs generated by invention licenses with universities stemming from federally funded research. 

In September of 2009, the federal circuit court ruled against Stanford’s claim of rights over an invention that measures the effectiveness of HIV treatments. Though the inventor did research under a grant by the National Institutes of Health, he was also working for a company later acquired by Roche, and he signed his rights to that company. Stanford claimed title to the invention under the Bayh-Dole Act of 1980, filing suit under the assertion that the company was infringing its patent in its marketing of HIV detection kits. The circuit sided with Roche, holding that Roche “possesses an ownership interest” and rejected Stanford’s claim. 

The decision by the Federal Circuit casts doubt on the rights of universities and the federal government to inventions arising from the hundreds of billions of dollars in research spending. More than 40 universities have joined filing briefs. 

The Supreme Court, which is known for being critical of Federal Circuit rulings recently, will hear arguments in the case early next year. 

To learn more about patents watch our top-rated course by Amy Goldsmith, "Overview of Patent and Trade Secrets"

For the full article, click here

On Wednesday, the New York Times reported that the US Government took a new position in the hotly debated issue of gene patenting, reversing their long-standing policy. The new position was declared in a brief filed by the Department of Justice in a case involving two human genes linked to breast and ovarian cancer. The US Government now holds that human genes cannot be patented because they are a product of nature, not of mankind. 

This new position could have enormous impact on the biotechnology industry because it effectively overturns decades of policy. The government acknowledged the long standing practice of the Patent and Trademark Office and the National Institutes of Health to seek patents for genetic DNA. 

If the position were to go into effect at the Patent Office, which is still unclear, it would likely draw protests from biotechnology companies who say that such patents are critical in developing cutting edge diagnostic tests and drugs. It is also crucial in the emerging field of personalized medicine, where drugs are tailored to individuals based on their genes. 

The debate over patenting genetic material has been controversial and emotional for decades. Proponents say that genes are isolated from the body and are chemicals different from those found in the body. Because these chemicals are developed through research and innovation, they are subject to patent. Opponents say that genes are products of nature and are not invented by mankind. Patenting them would be akin to patenting an apple, or a flower. 

To learn more about genetic patents, watch our top-rated course by Amy Goldsmith, "Yours, Mine, and Ours: Genetic Patents"

To read the full article, click here

Universal and its affiliates are being sued by the Sheldon Abend Revocable Trust for allegedly breaching a settlement agreement by distributing and advertising its movie “Disturbia” (2007).

Sheldon Abend was the literary agent who represented Corneil Woolrich, the author of the short story upon which Hitchcock’s classic “Rear Window” (1954) was based. This is not the first time that Abend sued over rights to the story: in the 1980s, when "Rear Window" was shown on TV, Abend took Hitchcock and the film’s star, Jimmy Stewart, to court, claiming that the defendants needed to secure the rights to the story that was the basis of the movie before they could show it on TV. That case went all the way to the Supreme Court, whose ruling on the matter established the “Abend rule” which deals with the continued distribution of a derivative work during the copyright renewal period of the underlying work.

The case also ended with a settlement between MCA (Universal’s predecessor) and Abend, which gave the MCA the right to distribute and advertise "Rear Window", in return for a percentage of the film’s gross revenue. The Abend Trust is claiming that the terms of this settlement are being breached by Universal, because Disturbia is based on Rear Window. A Federal judge in New York dismissed the case, saying the works were not substantially similar within definitions provided by copyright law, but the Abend Trust is appealing that decision, saying that the creative team behind Distrubia used many plot elements from Rear Window and also marketed the film as a modern version of the classic. An LA Superior court is set to hear the preach of contract case.

For the full story, click here

For more on copyright infringement, take a look at An Introduction to U.S. Copyright Law byTracey Batt

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The New York Times Just reported that a judge has ruled that a 4 year old girl who crashed her bicycle into an elderly woman on a Manhattan sidewalk two years ago can be sued for negligence. Justice Paul Wooten’s ruling doesn’t mean that the girl is liable, but that the lawsuit brought against her can move forward. Courts have held that an infant under the age of 4 is conclusively presumed to be incapable of negligence, but as the girl in question was over the age of 4, the judge refused to extend that rule to apply to her, adding that a child her age should have “reasonably appreciated the danger of riding a bicycle into an elderly woman.”

For the full story, click here

Next Tuesday, the Supreme Court is set to review California’s 2005 law banning the sale of violent video games to minors. The law never went into effect in California because the video game industry immediately sued, claiming the law violated the First Amendment (their claim was upheld by the Ninth Circuit Court). However, California officials behind the law are arguing that the rationale expressed in Ginsburg v. New York, which made it illegal to sell risqué magazines to minors because content that is not obscene may still be harmful to children and therefore may be regulated, can be extended to include violent content not just content that contains nudity. Publishers and filmmakers are backing the video game industry on this one, fearing that California lawmakers’ efforts to “protect children” will lead to a creative freeze across different media and to new regulations.

For the full article, click here

For more on how the courts usually respond to First Ammendment Cases, check out this course by George Freeman : Prior Restraints: Why Courts Disfavor Limitations on Speech

Cablevision subscribers can’t watch their sports, and they’re not happy about it.

A group of New Yorkers have filed a class-action lawsuit against Cablevision for its failure to provide Fox content for the past two weeks- a time period they consider “important” for the sports, politics and entertainment they are being deprived of.  The suit claims that the plaintiffs deserve compensation (to the tune of $450 million or more) for Cablevisions’ inability to reach an agreement with News Corp, despite receiving proposals to carry Fox programming “on the same terms and conditions of other cable providers in the New York metropolitan market."

The suit accuses cablevision of breach of contract, unjust enrichment and consumer fraud, because customers’ service agreements included a promise that they would receive "a credit for each 'known program or service interruption in excess of 24 consecutive hours.'" The suit also seeks a permanent injunction that forces Cablevision to enter into dispute resolution procedures with its content providers to that customers will not be deprived of programing in the future.

For the full article click here

For more on Contract law, take a look at Anatomy of a Contract by Jeffrey Helewitz and Hon. Eileen Nadelson

Justice Don Willett, of the Texas Supreme Court, cited an unusual legal authority in his Ruling in Robinson vs. Crown Cork Seal Company… Star Trek. The case deals with the limits of police power and Justice Willett's ruling relied on the idea that police power is based on the idea that "the needs of the many outweigh the needs of the few,". The ruling cited this as a “Vulcan” concept, and then went on to quote from Star Trek II: The Wrath of Khan.

For the full story, click here

For legal reasoning on civil rights, NOT based on Star Trek, check out this course by Scott Michelman : The Basics of Civil Rights Litigation

On Tuesday, the US Department of Justice announced that GlaxoSmithKline, the British pharmaceutical giant, as well as its subsidiary SB Pharmco Puerto Rico Inc., have agreed to plead guilty to civil and criminal fraud charges. These charges, relating to the manufacture and distribution of adulterated drugs, stem from a false-claims lawsuit originally filed in 2004. The pharmaceutical company has agreed to pay $600 million in a civil fine and a $150 million criminal fine for pleading guilty. 

The amount of the settlement is the fourth largest health care fraud settlement in US history, the record setting settlement being Pfizers $2.3 billion payout. In Pfizer’s record setting settlement, $1 billion was a civil penalty to resolve alleged violations of the Federal False Claims Act that they illegally promoted their drugs Bextra, Geodon, Zyvox and Lyrica, and paid kickbacks to healthcare providers. 

The charges were initially filed by Cheryl Eckard, the company’s former quality assurance manager, after her visit to the now-closed manufacturing facility in Cidra, Puerto Rico.  According to the complaint filed there was “chronic, serious deficiencies in the quality assurance function at the Cidra plant and the defendant’s ongoing serious violations of the laws and regulations designed to ensure the fitness of drug products for use.”

 A study conducted by the Taxpayers Against Fraud Education Fund showed that healthcare cases accounted for 80% of the $3.1 billion recovered last year by the Department of Justice under the Federal False Claims Act. 

Hell’s Angels are having legal problems, the Financial TImes reports, but not the kind you might expect for a notorious motorcycle gang. They are actually suing a high-end fashion line, Alexander McQueen, for using their “winged death’s head” symbol in various jewelry and clothing items.  Hell’s Angels claim to have been using the symbol since 1948 and to have a patent on it that protects it from use by other groups.  This is not the first time the motorcycle club has taken legal action over the use of its name and symbol: in 2006 they filed a lawsuit against the Disney film Wild Hogs, over concerns that that Disney was planning to use the trademark protected images in the film.

For the full article, click here

For more on the legal background of this case, watch An Introduction to U.S. Copyright Law by Tracey Batt

The use of social media as a communication tool has become essential in helping solo practitioners expand and manage their law practices. No longer is it merely a toy for kids, these days social media is a powerful tool that when used correctly will drive client business and increase legitimacy as a practitioner.

In this timely and exciting course "Social Media for Solo Practitioners," Nicole Black and Carolyn Elefant, attorneys and co-authors of the new book, Social Media for Lawyers: The Next Frontier, discuss how solo attorneys can use social media to grow their practices. They are interviewed by David Schnurman, Lawline.com’s CEO, and their considerable expertise in social media translates to practical tips any solo-practitioner use to increase online presence.  

Both Ms. Black and Ms. Elefant are distinguished attorneys who have used social media to expand their practices to new heights. In this course, they review a number of popular social networking sites and provide tips on how attorneys can use these sites to increase their online presence, network with colleagues, interact with potential clients, and convert online relationships into offline ones. In addition, Ms. Black and Ms. Elefant dispel some myths about social media, and share ideas about how to use specific sites such as LinkedIn, Facebook, and Twitter to gain competitive intelligence, showcase expertise, and increase search engine optimization.

The popularity of social media continues to grow with no sign of slowing, making this a must-watch program for all attorneys seeking guidance on how to improve their reputation, maximize their exposure, and establish new working relationships for their solo practice.

To learn more watch the New Course "Social Media for the Solo Practitioner" by Nicole Black and Carolyn Elefant 

As internet users increase by the day and more people become connected through new media, difficult legal considerations arise requiring extensive examination to determine how this developing medium should be regulated. The current issue being widely debated is that of Net Neutrality; whether or not Internet Service Providers can charge premium prices for those using apps that take up large amounts of bandwidth. New Lawline.com faculty member Owen Kurtin examines Net Neutrality and other important issues surrounding what he calls "the hottest topic of 2010" in his course "Net Neutrality and the FCC's Third Way Proposal."  

In this course Kurtin, an attorney and expert in telecommunications law, illuminates many of the complex legal arguments and issues involved in this debate. Beginning with an overview of the background of US telecommunications law, Mr. Kurtin identifies the proponents and opponents of net neutrality and examines the FCC’s recently proposed National Broadband Plan to make broadband access virtually universal. 

In addition, Mr. Kurtin dissects pivotal Supreme Court decisions, Brand X and Comcast Corp. v. FCC, and elucidates the FCC’s “third way” approach to reclassifying broadband services in light of the Comcast case. Mr. Kurtin concludes his review of this cutting-edge topic by highlighting the ways in which the Brand X decision and the Computer Inquiry proceedings present a barrier to the “third way” approach, equipping the viewers with all the information they need to become spirited participants in the net neutrality debate. 

To learn more watch Owen Kurtin's New Course "Net Neutrality and the FCC's Third Way Proposal" 

When executives at Office Depot realized they would fall short of their quarterly earnings estimate in 2007, they allegedly dropped hints to analysts and institutional investors in a series of phone calls. These calls were the subject of an SEC investigation that led to charges now being settled for $1 million. The SEC charged the company with violating fair disclosure regulations as well as accounting violations. CEO Stephen Odland and former CFO Patricia McKay will each individually pay $50,000 as part of the settlement.

The charges were not that Office Depot executives directly told analysts privileged information; rather, the charges were that the message was veiled but clearly hinted. The SEC charged Office Depot with violating Section 13(a) of the Exchange Act and Regulation FD, as well as allegedly prematurely inflating operating profit. These acts “gave an unfair advantage to favored investors at the expense of other investigators and, as today’s action shows, is illegal” said Robert Khuzami, Director of the SEC’s Division of Enforcement. 

Office Depot was represented by Daniel Shea of Hogan Lovells. John Sturc of Gibson, Dunn & Crutcher represented CEO Odland, and Charles Mills of K & L Gates represented McKay, the CFO. The SEC's case was handled by Steven Meiner, Kathleen Strandell, Chad Alan Earnst, Eric Busto, Amie Berlin, Bob Levenson, Teresa Verges, and Yolanda Gonzalez.

To learn more about SEC practices watch our top-rated course by Ernest Badway "Securities Enforcement; The Past, Present, and Future"

The New York Times Reported yesterday on a new law in New York which will allow homeowners who win in foreclosure proceedings to have the lenders pay their lawyers’ fees. In other types of cases, such as employment and civil rights cases, legal fees are usually awarded to the winning party, but foreclosure litigation has been an exception, until now.

This law comes at a good time for homeowners, because banks have recently come under scrutiny for the way they documented mortgages during the housing boom, giving homeowners a better chance to get banks’ foreclosure action thrown out, and have their legal fees covered. Although some don’t think the new law would substantially tip the scale in favor of the homeowner in terms of getting banks to settle with homeowners etc, an expected benefit of the law is that it will make it easier for homeowners to get representation, because it provides a “pretty reasonable incentive” for lawyers to take their case.

For the full article, click here

for more on ways to help your clients avoid foreclosure watch this course by bankruptcy and loan specialist Ducchi Quan : An Attorney's Guide to Loan Modifications under the Home Affordable Modification Program

A group of bondholders stuck with $47 billion in Countrywide-issued residential mortgage-backed securities have positioned themselves to sue Bank of America. The bondholders claim that BofA failed to perform its duties as the servicer of the bond deals and want BofA to buy back some of the bonds. Kathy Patrick, of Gibbs & Bruns, who is representing the group, says that if BofA does not agree to buy back some of these securities they plan to sue.

Last week the New York state supreme court dismissed a class action lawsuit that claimed Bank of America was obliged to buy back hundreds of thousands of the same kind of securities. The case was dismissed on the grounds that the plaintiff did not have the support of 25 percent of certificate holders as required to commence litigation. However, in this case Patrick represents a group that comprises more that 25 percent of the voting rights, so they have met the required conditions to commence litigation.

If the case leads to a lawsuit it could be one of the first cases where mortgage-bond investors are seeking to enforce their contract rights. Patrick says their key advantage is that it is not a securities case, it is just contract enforcement. Thus, Patrick must only show that BofA did not fulfill the terms of the contract, they do not need to show intent. 

To learn more about Wall Street reform and current laws, watch our top-rated course by Daniel Shlufman "Key Mortgage & Real Estate Related Provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act"

For the full article, click here

The Wall Street Journal reported today that the USDA agreed to settle a class action lawsuit brought against it by American Indian farmers over alleged discrimination for $680 million. Although eligible farmers and ranchers can receive up to $250,000 if they show how discrimination by the USDA caused them financial losses, most will probably accept the uniform $50,000 payment which requires less paperwork. At this point it is hard to say how much the government will actually have to pay because it depends on how many farmers will file claims. The settlement also includes provisions forgiving $80 million in American Indian farmers’ debts and enhancing USDA programs with American Indian producers.

The 11 year old suit claimed that the government denied American Indian Farmers the low-interest loans that were given to white farmers; this is similar to the claim made by black farmers against the USDA which was settled for $1.25 billion back in February.

For the full article, click here

To learn more about Federal employment discrimination statutes, view this course by  Stephen Bergstein : Employment Discrimination in the Second Circuit

The U.S. Supreme Court will decide whether an American Muslim has standing to sue Bush administration attorney general John Ashcroft. Abdullah al-Kidd alleges that Ashcroft is responsible for his improper arrest and detention after the September 11 terrorist attacks. Al-Kidd was one of dozens of Muslims and Arabs arrested during the period following the attacks.

Al-Kidd was arrested at Dulles International Airport in 2003, as he was preparing to board a flight to Saudi Arabia. TH FBI persuaded a judge to issue an arrest warrant by contending that al-Kidd had purchased a $5,000 one-way ticket. They neglected to mention, however, that al-Kidd is American born and has a wife and kids in America. Also, his lawyers say he had purchased a considerably less expensive round trip ticket.

The Supreme Court will not rule on the details of Abdullah al-Kidd’s case. Instead, they will focus on whether or not al-Kidd and his attorneys can show that specific actions of then attorney general Ashcroft cross the limits of the Constitution. Ashcroft, who is represented by the Obama administration, says he should be shielded from suits concerning official duties.

The attorney general has never been held personally liable for official actions, and Ashcroft has been victorious in other suits that have been levied against him. In a previous Supreme Court case, Ashcroft prevailed over a detainee, Javaid Iqbal, who sought to hold him liable for his confinement. The decision of the court, 5-4, held that the connection between Ashcroft’s actions as attorney general and the confinement of the detainee was too attenuated.

Supreme Court rulings do allow high ranking officials to be held liable, but they set a high bar. An official must be tied directly to a violation of constitutional rights. The federal appeals court in San Francisco held that al-Kidd’s case met this high standard and criticized the use of material witness warrants for national security.

To learn more watch our top-rated course "The Basics of Civil Rights Litigation" by Scott Michelman

For the full article, click here

A Wall Street Journal investigation found that many of the most popular “apps” on Facebook, a social networking site, have been transmitting user information to dozens of advertising and internet tracking companies. The information, when combined with internet user databases already held by several advertisers, provides identifying information about users as well as their friends.

The issue affects tens of millions of users who use these applications, including some of the most popular games like Farmville and Texas Hold’em Poker. Even information of users who have the highest privacy settings enabled were transmitted, violating Facebook’s rules. It is not clear, based on the Wall Street Journal’s investigation, how long this problem continued but a Facebook spokesman said that they are taking steps to “dramatically limit” the exposure of personal information.

Defenders of online tracking argue that information transmitted in this way is benign because it is conducted anonymously. In this case, however, the Wall Street Journal found that one data gathering firm, RapLeaf Inc., was able to connect the anonymous Facebook user ID that was transmitted by apps to their own database of users, which it sells to advertisers. RapLeaf said the transmission to other firms was unintentional and Facebook has said it is significantly limiting RapLeaf’s ability to use any Facebook-related data.

Facebook has been subject to several inquiries in the past months about their use of personal data. As recent as this month Facebook has made an effort to give its users more control over its apps, which privacy activists have cited as a potential hole in users’ ability to control what information is shared. It’s not clear if the developers of apps realized that data was being transmitted, and Facebook says it has disabled thousands of apps at times for violating rules its privacy rules.

To learn more watch our top-rated course by Tim Baran and Ronald Coleman "Social Media and the Law: What Attorneys Should Know"

For the full article, click here

This article from USA Today breaks down the situation as it currently stands in regards to foreclosures. Apparently, mortgage lenders have been filing faulty court papers to foreclose on homes. The lenders were using “robo signers” to prepare legal documents required to get court approval to foreclose, and they signed thousands of papers without reviewing supporting documentation in the case or signing the affidavit in front of a notary, making their paperwork invalid in states where judicial approval is required to move ahead on foreclosures. Furthermore, there have been some allegations that the supporting documentation in some of the cases was falsified and some signatures were fraudulent. As a result, many banks have either suspended foreclosures, or are continuing with the foreclosures while investigating their practices. 

There are a handful of investigations into the foreclosure mess being launched by various bodies including The Justice Department, The Office of the Comptroller of the Currency (which regulates the nation's largest banks), the Federal Housing Administration and The Senate Banking Committee. Those charged with fraudulent foreclosure practices face civil penalties and criminal prosecution.

Courts could now see a wave of challenges to both current and past foreclosures cases. And there could be legal battles between former owners who will claim they were foreclosed on illegally and those that currently own the foreclosed property. For this reason it is recommended that those looking to buy a foreclosed property, hire a lawyer to review the court case file to look for missing documents and incorrect dates.

For the full article click here

for more on current programs meant to help homeowners avoid foreclosures, watch this course by Ducchi Quan: An Attorney's Guide to Loan Modifications under the Home Affordable Modification Program

In State of Florida v. U.S. Department of Health and Human Services, District Judge Roger Vinson has rejected the Obama Administration’s motion to dismiss the challenge that has been raised by 20 state attorneys general and four governors.

In the case, Federal Judge Vinson says two key claims can go forward. Firstly, the states’ claim that the individual mandate to purchase coverage exceeds the power granted to Congress by the commerce clause and violates the 9th and 10th Amendments. Secondly, the claim that the medical program created under the act unconstitutionally commandeers the states with respect to the commerce clause.

Vinson wrote that he has not attempted whether the line between constitutional or not has been crossed but it is a question that will be decided based on the parties’ motions for summary judgment. Vinson is not the first judge to reject the government’s arguments in recent months.

In August, U.S. District Judge Henry Hudson in Virginia refused to dismiss a challenge brought by Virginia Attorney General Ken Cuccinelli in the case Commonwealth of Virginia v. Sebelius. This case will hold a summay judgment hearing in October 18.  But, last week, on October 7, U.S. District Judge George Steeh in Detroit upheld the law’s constitutionality in a challenge brought by Thomas More Law Center in Thomas More Law Center v. Obama.

To learn more about the importance of suppression motions watch our top-rated course by Randy A. Hertz, "Suppression Motion Practice, Fourth and Fifth Amendment Issues"

To read the full article, click here
 

The Wall Street Journal reported today, that Medtronic has agreed to pay $268 million to settle the thousands of personal-injury cases that have been brought against it on account of its fracture-prone “Sprint Fidelis” cables. The malfunctioning devices are used do connect patient’s hearts to implantable defibrillators. According to an independent monitoring board, the devices may have been linked to 13 deaths (4 of which were caused by attempts to remove the problem devices: a dangerous procedure).

There are still many details to work out in the settlement. Attorneys representing the clients in the 8,100 cases will have to decide how to divide the money Medtronic has made available. Plaintiffs can also choose not to participate in the settlement and proceed with their suit against the company, however it is unlikely that many will choose to do so,  since a Federal district judge in Minneapolis threw out a representative sample of cases last year, and his ruling seems to apply to all cases against Medtronic. Most attorneys will likely put their client’s cases before a committee that will decide their compensation value.

For the full article, click here

To find out more about Personal Injury law, take a look at this course by Edward Milstein : Medical Malpractice: Picking the Case that Pays

Lawline.com faculty member Steven Simpson was recently featured in several news articles regarding his lawsuit challenging Florida’s campaign finance laws in Andrew Nathan Worley, et al. v. Dawn K. Roberts, et al.  To read more about this case, see the article published by the West Palm Beach Examiner titled "Libertarian Law Firm Going After Florida's Campaign Finance Laws." In Worley, Simpson filed a lawsuit on behalf of a group of plaintiffs challenging the state’s restrictions on campaign funding as a violation of their First Amendment free speech rights.  In order to speak out about political issues, citizens of Florida and 23 other states must register as political committees and navigate complex regulations.  Simpson is quoted as saying “It turns out that in America, you need more than an opinion to speak out about politics.  Today, you also need a lawyer.”  Simpson and his organization, the Institute of Justice, were also featured in the news earlier this year regarding the high profile campaign finance law case, Citizens United v. FEC. For more information on this case, see the article from the NationalJournal.com titled "Citizens United Fallout Already Being Felt." 

In Citizens United, the Supreme Court held under the First Amendment, that corporate funding of independent political broadcasts in candidate elections could not be limited.  This close decision (5-4) resulted from the dispute over whether the nonprofit organization Citizens United could broadcast a film on cable television which argued that Hillary Clinton was unfit for high office.  Ultimately, the Court held that Citizens United should have been able to broadcast the program.  In his recent course with Lawline.com, The Impact of Citizens United v. FEC, Simpson reviews the case in great detail, and provides a comprehensive overview of the history of campaign finance laws and his predictions for the future. This hot button political issue was also featured today in the Huffington Post, in an article titled Citizens United-Game Changer in which the author argues that President Obama’s predictions that the Citizens United decision would unleash a torrent of corrupt corporate money into our political system has come true. Watch Simpson’s course to better understand this landmark decision, and make your own determination of whether or not states should be able to restrict a group of individuals’ campaign funding choices, or if such limitations violate their First Amendment rights.

To watch Steven Simpson's course on Citizens United v. the FEC, click here

A survey of law departments shows in-house counsel are bracing for a jump in litigation, according to a survey of law departments released Wednesday. The Fulbright Litigation Trends Survey showed that corporate counsel expects a continuation of the upward trend in litigation that began with the economic downturn. 93% of US respondents expect US legal disputes to increase or remain the same this coming year, a large increase from 42% who expected this in the survey conducted last year.

The reason cited for the upturn is that with an increasingly regulated and lagging economy, more litigation is a natural result. As the country begins coming out of the recession nearly a third of companies are seeing the strict regulation as a major concern. Regulators have been investigating companies in a variety of sectors, most prominently banking, health care and energy. The survey notes that even at small-cap companies, regulatory investigations have almost doubled.

Big companies draw a greater number of lawsuits, not surprisingly, but even small and medium sized are likely to deal with litigation in the near future. Some industries are seeing a much larger spike in litigation than others. The energy sector saw the biggest jump in litigation this past year, 57% encountered at least one arbitration. Insurance (45%), manufacturing (43%) and financial services (38%) also saw a lot of action from regulatory investigations.
The conclusion of the survey was that the climb in litigation is not projected to stop this year. And with nerves on edge, companies are spending more on litigation budgets to keep up with new regulations and tougher oversight. 
 

To learn about the SEC and it's regulation process watch our top-rated course by Ernest Badway "Transparency at the SEC, A Response to the Current Financial Crisis"

For the full article, click here

USA Today reports that although Brett Favre is in trouble with the NFL for sending lewd photos to Jets employee, Jenn Sterger, he will not be taken to court for it because his behavior does not qualify as sexual harassment according to the legal criteria established for such matters. The generally accepted legal standards for sexual harassment includes unwelcome advances; pervasive behavior constituting a hostile work environment; and whether any complaint was made with the company. There are also no laws against texting or e-mailing sexually explicit photos of adults, which is protected under first amendment rights. However, if the NFL’s probe into the issue reveals that Favre violated the league’s personal-conduct policy, it can decide to fine or suspend Favre even in the absence of legal charges.

For the full article, click here

For more on contemporary Sports Law, click here for a course by William Glover

A U.S. District Court for the District of Colorado sided with Nintendo and offered a summary judgment late last month for a suit filed by angry gamers. Gamers have taken issue with the Nintendo Wii remote controller, claiming that the strap attached does not sufficiently prevent damage caused from accidentally hurling the controller during gameplay. The plaintiff sued alleging that the defective strap is responsible for their broken televisions, and they wanted compensation for that damage. The court sided with Nintendo, agreeing that they had given sufficient warning, including repeated instructions to be careful while holding the controller and warnings that the strap is not meant to withstand the kind of excessive force brought on by a full swing.

The court’s decision stems from the implied purpose of the strap and the lack of evidence indicating one specific purpose over any other. One might assume that the purpose of the strap was to prevent a controller from inadvertently flying out of a gamers hand while playing, as the plaintiffs clearly did. However, one might equally assume that the strap is simply intended to keep an inadvertently released controller in the vicinity of the player so it can be more easily retrieved, and may never have been intended to withstand the high stress of being thrown full force out of a player’s hand. Without showing one clear purpose the court held that the strap was not shown to be faulty. Thus, summary judgment was granted for the defendant.

To learn more about personal injury litigation, watch our top-rated course by Alan Schnurman, "Negotiation: A Tool to Acheiving a Successful Outcome in Personal Injury "

For the full article, click here

The LA Times reported this morning that a federal judge in California issued a ruling on the military’s “don’t ask, don’t tell” policy, which effectively bans the practice. The judge ordered the Defense Department to halt all efforts to remove servicemen and women because of their sexual orientation. The judge ruled that the policy "infringes on the fundamental rights of United States service members” because it violates due process and freedom of speech, and infringes on the right of service members "to petition the government for redress of grievances,” because it does not allow them to fight for their jobs if they are revealed to be homosexuals and are removed because of it.  Although a federal judge can declare a law unconstitutional, there is debate in this case whether a district court judge can unilaterally invalidate a nationwide policy.

This ruling also has serious political ramifications. Usually, when an act of congress is challenged, the justice department is obliged to defend the federal law. However, appealing this ruling would be a risky move for the Obama administration since it would anger his base of democratic supporters, who have long called for the repeal of the act.  The Obama administration has 60 days to appeal the ruling, which means Obama could technically put off the decision until after the midterm elections, however if he does not appeal right away he faces the ire of conservatives and even less support from republicans in congress, and if he does appeal right away he risks losing support of his democratic base.

For the full article click here

To Learn more about Federal laws regarding employment discrimination, look at this course by Stephen Bergstein : Employment Discrimination in the Second Circuit

The Huffington Post reports on the escalating contention over the  "Stolen Valor Act", which makes it illegal to lie about being a war hero. The Justice Department is attempting to preserve the law after 2 courts ruled that the law is unconstitutional on 1st ammendment grounds. It is now possible that the case will go all the way to the Supreme Court. Many suspect that even if the case ends up in the Supreme Court, the law will likely be struck down because this particular court is skeptical about restrictions on free speech rights, and because the government would need to show that it has a compelling interest to restrict free speech, which, according to UCLA law professor Eugene Volokh, would be difficult to prove in this case.
for the full story click here
To learn more on this topic, take a look at this course taught by  George Freeman:  Prior Restraints: Why Courts Disfavor Limitations on Speech

A new law that passed through the House of Representatives last month and is waiting for President Obama’s signature will increase protections offered to soldiers oversees. Soldiers already receive some protections from the Servicemembers Civil Relief Act, which include being able to terminate a lease and puts a cap on the interest rate creditors can charge.

However, to exercise these protections many servicemembers need find an attorney, which can be a difficult task for soldiers serving overseas. This is the issue targeted by the new package of bills, which aims to simplify the process by which soldiers utilize protections offered to them under SCRA. The motivation behind the bill is that the last thing a soldier should be worrying about is home foreclosure or car repossession.

The ABA has been active in their efforts to increase assistance to servicemembers in need of legal service. The ABA Military Pro Bono Project connects soldiers with local attorneys willing to work pro-bono to assert servicemembers’ rights. The goal of the project is to streamline the sometimes chaotic process of linking a soldier to a local attorney through Jag Corps. Many local attorneys have taken it as a point of pride to represent a soldier fighting oversees.  

To learn about the rules that govern charitable organizations, watch our top-rated course by David G. Samuels "A Primer on the Rules Governing Charitable Non-Profit Organizations"

For the full article, click here

An article in USA Today describes the “culture of fear” that is spreading among illegal immigrants, causing them to seek the help of lawyers in drawing up legal documents that, like a will, spell out what the individual wishes to happen to his or her family and belongings in the event he or she gets deported. The increase in requests for this kind of service in the past year has been fueled by Congress’ failure to act on legislation that would legalize the 11 million illegal immigrants already in the country, by the Obama administration’s record number of deportations, and by the passage of Arizona’s controversial immigration law (which may be copied by other states).
For the full article, click here
 

and check out this course taught by Rahul Manchanda: Federal Immigration Deportation and Removal Defense

In the past several weeks most of the big lenders have halted foreclosures to reexamine mortgage documents to ensure they are in line with the 23 states that require court approval before a foreclosure can commence. There has been controversy in recent cases where small firms are acting as “foreclosure mills,” signing thousands of documents to issue foreclosures each month. This has pushed lenders away from small firms seen in this light toward large firms when homeowners fight foreclosure and challenge document legitimacy.

This kind of move is exemplified in a case currently underway. Parnell Peace has brought a case against a Bank of America subsidiary that has commenced foreclose procceedings on his house in Florida. But, Parnell and his attorneys at Ice Legal challenge the supporting documents provided by the mortgage company. The documents have inconsistent dates and timeline for mortgage transfers between various lenders. The Bank of America subsidiary has since hired a team from Gray Robinson to work on the case. The team has moved quickly to suppress documents and a key affidavit.

Several other banks have also made the move towards large firms and legal teams as challenges are on the rise. In Texas, JPMorgan and its local counsel, Quilling, Selander, Cumminskey & Lawnds, have moved in several current cases for them to be tried in federal court.  It remains to be seen how these tactics will play out, but as homeowners increasingly challenge the legitimacy of foreclosure and mortgage documents, banks are clearly favoring large legal teams.
 

For more on foreclosures watch our top-rated course by William J. Horan and Peter J. Wagner, "Saving the Distressed Homeowner"

For the full article, click here

I recently appeared on Fox Business with Neil Cavuto to discuss the souring relationship between the White House and the Republican congressional leadership and its potential impact on their future negotiations. Since this raises critical negotiation issues, I thought you might be interested in my thoughts on it.

Overall, the crux of the interview revolved around the extent that your negotiation strategy should change based on whether and to what extent you want or expect to have a future relationship with your counterpart.  Cavuto’s point was that the White House should stop bashing the Republican leaders if it wants to get a tax cut deal from them in the future – especially if the Republicans take over the House and/or Senate.

In traditional business negotiations, Cavuto is right. The more your potential interests and long-term goals will be maximized with a future relationship, the more likely you should employ problem-solving strategies in your negotiation.  This would include taking steps like openly sharing information, de-emphasizing leverage, focusing on fair objective criteria and mutually considering the offer-concession process and agenda. 

This also involves - as Cavuto emphasized – not publicly criticizing your counterparts. Doing so will not only harm the relationship but it will also lower the likelihood you’ll get a deal done.

In political negotiations, however, the dynamic is different because politicians, especially in an election year, focus much of their energies on their relationship with their various constituencies and voters.  Here, both the President and Republican leadership have different constituencies.  As a result, they often engage in a lot of public give and take as they vie to motivate their political bases to re-elect them and their colleagues.

They do this to create public support for their positions which, if successful, strengthens their leverage in their negotiations with each other and helps them control the negotiation agenda. Since this is a fairly common political tactic, they also expect their counterparts will engage in similar public posturing.

Traditionally, however, once the rubber hits the road and they face a deal or no deal, they typically go behind closed doors, negotiate the details, and largely discount the campaign season’s political rhetoric as simply that – political rhetoric.  This is often necessary to get a deal done which is in their self-interest regardless of what they say about each other in public.

Of course, if a real personality conflict does arise and the parties go over the line in their personal attacks, it could prevent them from focusing on their and the country’s self-interest when and if they get behind closed doors. While I don’t think that is the case here (at least not yet), I could be wrong. If so, we might be headed for serious deadlocked negotiations in the future.

For more about negotiation watch our top-rated course by Jay Sullivan,"Negotiation Skills for Attorneys"
 

Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts' proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com.

A ruling came down yesterday about a case that was brought against Obama’s Health reforms by a Christian public-interest law firm representing 4 uninsured people in Michigan, who claim that they don’t want to pay the tax penalties for being uninsured that they would need to pay under the new law because those funds can be used to fund abortions. The Christian law firm is challenging “Obamacare” on the basis that the healthcare law is exceeding the powers Congress has to control commerce, is infringing on people’s 1st amendment rights to practice their religion and is in violation of the due process and equal protection clauses of the 5^th amendment.  The biggest issue at stake is the concern that upholding Congress’ right to force people to buy insurance will now give the federal government the ability to regulate citizen’s inactivity (their choice to refrain from acting).

The Michigan federal judge hearing the case upheld the healthcare law as constitutional. He said that although the Supreme Court hasn’t addressed whether congress can regulate inactivity, people’s opting out of insurance programs “substantially affect[s] interstate commerce” because it drives up insurance premiums and healthcare costs covered by taxpayers. Although the healthcare bill was upheld in this case, the ruling doesn't bind the courts in other districts so this is not the final word on the constitutionality of the law, which is still being challenged.

For the full article from the LA Times, click here

For more on Constitutional Law, take a look at The Basics of Civil Rights Litigation by Scott Michelman

Fee Disputes in the Big Arena and Legal Malpractice
Today's New York Law Journal reports on a fee dispute.in an article by Susan Beck of The American Lawyer.  This, however is not a fee dispute one might see on a typical day in the fee dispute world.  Typically, those fee disputes are for sums less than $ 50,000.  Here, the client paid $ 5 million to Boies Schiller and the dispute is over an additional $ 5 million.  Besides those sums, the client paid Davis Polk an additional $ 7 million in fees before it ran out of money.
"In a lawsuit filed Oct. 1 in Manhattan Supreme Court, G.K. Las Vegas Limited Partnership is seeking to force Mr. Boies's firm, Boies Schiller & Flexner, to arbitrate a fee dispute before the American Arbitration Association and to place more than $5.04 million in disputed fees in escrow.
G.K. claims that it has already paid the firm $5 million and disputes its obligation to pay another $5.04 million. It alleges that Boies Schiller breached its agreement that Mr. Boies would serve as lead counsel and "shirked its professional responsibilities" to the client.
Justice Bernard J. Fried (See Profile) has ordered Boies Schiller to respond to G.K.'s petition to compel arbitration by Oct. 15. A hearing in G.K. Las Vegas Limited Partnership v. Boies Schiller & Flexner, 651632/2010, is scheduled for Oct. 19.

Attorney Client Privilege in Legal Malpractice Litigation
 Carl v. Cohen, Supreme Court, New York County, Justice Edmead 2009 NY Slip OP 30806(U), April 15, 2009 illustrates two distinct principals in the area of attorney-client privilege. The first is privilege and at issue communications.  The second principal, to be discussed on Friday, is relation-back and the statute of limitations.
Plaintiff in this case was an employee at a mutual fund operation, and was embroiled in a market timing case in which it was alleged that someone was utilizing the time-zone differences between the east coast and California to make money in the mutual funds market.  He hired law firm 1, then fired it, and went on to law firm 2 and 3.  This case discusses the question of whether target attorney in the legal malpractice case may obtain otherwise privileged materials from the successor attorneys.
"The issue at bar in this case is whether Cohen may depose plaintiff's successor attorneys about the contents of and subject matter of these documents, as well as other communications "A waiver may also be found where the client places the subject matter of the privileged communication at issue, or where invasion of the privilege is required to determine the validity of the client's claim or defense and application of the privilege would deprive the adversary of vital information [internal citations omitted] (Jakobleff v. Cerrato, Sweeney & Cohn, 97 AD2d 834, 835 [2d Dept 1983] [plaintiff did not place her privileged communications with her present attorney at issue, nor was discovery of such communications required to enable defendants to assert a defense merely by bringing an action against her former attorney for legal malpractice]; Credit Suisse First Boston v. Ultrecht-American Fin. Co., 27 AD3d 253, 254 [1st Dept 2007]; Raphael v. Clune White & Nelson, 146 AD2d 762, 763 [2d Dept 1989] [attorney-client privilege between client and attorneys who had taken over case from law firm was not waived by client's initiating lawsuit. In addition, appellants failed to establish why the disclosure of privileged correspondence was vital to their defense in light of the broad range of materials already supplied by plaintiff]).


Non-Economic Damages in Legal Malpractice Litigation
Plaintiff sues defendant attorneys for legal malpractice.  Among the claims of damages are financial losses in the underlying case, as well as emotional -pain and suffering-damages based upon outrageous conduct by the attorneys.  Are these non-economic damage claims permissible?
In New York, there may not be claims for non-economic damages arising from legal malpractice.  When one says A"arising" from legal malpractice, it is correct to say that the behavior of the attorneys cannot give rise to emotional damages.  Of course, if the legal malpractice took place in , say, a personal injury action, then the emotional damages which might have been collectable there are part of the overall legal malpractice damages, as they are now economic, and must be calculated as if in a hypothetical judgment that was never obtained.
In Taylor v Paskoff & Tamber, LLP ;2010 NY Slip Op 20405 ;Decided on October 4, 2010 ;Supreme Court, New York County ;Stallman, J.  we see his decision on an offshoot of this issue.  ""Emotional damages are not recoverable in a legal malpractice action." Kaiser v Van Houten, 12 AD3d 1012, 1014 (3rdDept 2004); Risman v Leader, 256 AD2d 1245, 1245 (4th Dept 1998); Dirito v Stanley, 203 AD2d 903 (4th Dept 1994). " A cause of action for legal malpractice does not afford recovery for any item of damages other than pecuniary loss so there can be no recovery for emotional or psychological injury." Wolkstein v Morgenstern, 275 AD2d 635, 637 (1st Dept 2000).

One Good and One Bad Affidavit in Legal Malpractice Case
The decision in this case is straightforward, but gives practitioners little practical advice on how to word and present an expert's affidavit.  In Giardina v Lippes, 2010 NY Slip Op 06834; Decided on October 1, 2010;  Appellate Division, Fourth Department we see two things.  The first is that the two summary judgment motion rule is not really a rule at all; it is really just guidance to the Court.  Two motions for summary judgment might be entertained after all.
 
The second issue we see is that of the quality of expert opinions in summary judgment.  Once, the rule was that courts scrutinize whether movant demonstrates prima facie entitlement to summary judgment, and if so, whether opponent demonstrates material questions of fact that continue to require resolution by the trier of fact.
The quality of an expert's opinion was sacrosanct, since facts may not be debated in a motion for summary judgment.  Here, and in many other cases the kicker is when a court feels permitted to rule out the expert's opinion as "conclusory."  In this case, as in many other appellate decisions, no time is taken to explain why the particular affidavit was "conclusory" rather than permissible.  What makes the difference?
Here, defendant's expert presented a "good" affidavit, and plaintiff's expert presented a "conclusory" affidavit in a lawn care products liability case.  How does one tell the difference?

To learn more about legal malpractice, watch Andrew Lavoott Bluestone's course "Legal Malpractice Litigation"

Big pharmaceutical gets a big win as federal judge Lawrence Stengel refuses to certify a class action lawsuit against GlaxoSmithKline. Stengel threw out the case on the ground that the plaintiff did not sufficiently prove that each class member was affected by GSK’s actions. Plaintiffs brought suit alleging that GSK set out to delay the arrival date of a generic version of Wellbutrin SR by bringing baseless patent litigation. Stengel, however, did not see that all of those involved in the class action were actually harmed by the actions of GSK. Instead, Stengel chose to side with GSK’s expert witness, John Bigelow of the Princeton Economics Group, and held that there was no clear evidence that indirect purchasers had sustained substantial injury or out-of-pocket losses. The decision handed down will likely be used by other big pharmaceutical firms because the details Stengel highlights point to general problems resulting from consumer class actions like these.  The theory behind this kind of case is that consumers are hurt when generic drugs are not available, but Stengel challenges that this suffering may be more attenuated, and more research must be conducted to show specific harm.

For more on patent law watch our top rated course by Amy Goldsmith, "Overview on Patent and Trade Secrets"

For the full article, click here

Lawline has been a public access television show spreading legal knowledge to the community of New York for 27 years. Recently Alan Schnurman, host and creator of Lawline, sat down with his son David Schnurman, President of Lawline.com, to discuss his passion for spreading information.
Alan Schnurman started Lawline 27 years ago as a means of spreading legal information to the community. He wanted to include the public in a community of education that once included only an elite group of attorneys. By bringing to the show prominent and experienced attorneys Alan hoped that he could provide valuable legal information to those who might not be able to afford premium legal advice. "It was a labor of love," Alan says. He gets a tremendous amount of satisfaction from helping people and wakes up happy every day because he has found what he loves to do, and he's doing it.
But what makes Alan so optimistic and happy when so many see these bleak times as a doomsday scenario come to life? It seems to be the pessimist's heyday, but Alan remains unflinching in his optimism. Every cycle comes back around, Alan says, and this recession may be longer than we've seen in a generation or two but this is the time where people position themselves for great success later on.
Alan sees attitude as the foundation of success in investment. He believes that when you have a good attitude you guarantee success. Alan has always invested in real estate because he has never been interested in a quick dollar. If you want quick money, look to the stock market, he says. But, if you have patience and want steady growth and security later on, invest in real estate. The three golden rules of real estate investing are location, not over leveraging yourself, and being patient. By adhering to these rules you guarantee success in any market, Alan says. Those who are buying now and staying in line with these rules set themselves up for success later on when the market starts to grow again.
In advertising and marketing, Alan again comes back to attitude. He says that too many attorneys don’t stick with advertising in one way for long enough to see benefits. All too often frustration sets in because of meager immediate returns. But if you keep switching to different media, from newspaper to internet, to television, back to newspaper, you will not have success. Instead, focus on one avenue and be patient, Alan says, your customers need to be educated and the returns may not be instant. Alan mentions that he once had thousands of refrigerator magnets made. He was discouraged because the immediate return wasn’t what he was hoping for. But, the return has been steady and now, 15 years later, he still gets calls from people who got his number from the magnet.
Thus, success in all things comes from having the right attitude, being patient and not getting discouraged. If you want to be successful be patient and stay optimistic. If you’re down on your luck, someone always has it worse so push through with enthusiasm and a problem solving mindset and you will succeed.

See the full interview, click here

Watch Alan Schnurman's top rated courses,

- "Secrets to Selecting a Personal Injury Case"

- "Negotiation: A Tool to Acheiving a Successful Outcome in Personal Injury"

How Private is Facebook?

October 5th

Facebook and privacy issues go hand in hand these days, and the issues have been left largely unaddressed so far under the law. Although Facebook has only been around for a few years its impact has been undeniable. And yet there have been few moves to address how Facebook and other social media sites should be treated under the law. The Stored Communications Act, just about the only law that has been created to determine the legal status of sites like Facebook, was passed in 1986. Needless to say, technology has changed a good deal in the past quarter of a century. Without strict legal guidelines laid down by congress, judges have relied on interpretations of this 1986 law to determine what to do about issues arising from the legal status of information originating from social media sites. In recent cases judges have had trouble applying the spirit of what the law says with regards to such complicated and multi-functional sites as Facebook and Media Temple. Therefore, the question still looking for an answer is, what is privacy in the era of social media and information liberation?

For more on the social media and its legal status, watch our course by Tim Baran and Ronald Coleman "Social Media and the Law: What Attorneys Should Know"

For the full article, click here
 

Last Thursday, Gov. Arnold Schwarzenegger signed a bill to decriminalize marijuana in the state of California. The law reduces the possession of pot from a “misdemeanor” to an “infraction”. The offense is now punishable by no more than a $100 fine. Gov. Schwarzenegger claimed that his support for the bill is motivated by fiscal concerns: now, the state will expend need to expend fewer resources in prosecuting offenders because they would not need to be arrested or appear in court.
The various groups involved with the Marijuana issue are divided about this new law. Some groups praise it as a step in the right direction; others say that it is still enough and they won’t “rest” until marijuana is completely legalized. Other groups still, like most of California's major police associations, oppose the measure, claiming that less severe consequences for possession will discourage people from giving up the habit.
 

For more on the story click here

For more on substance abuse and legal ethics, click here

The Fall Opens at the Supreme Court

A fresh term at the Supreme Court opens today, with a record three women justices on the bench. The newest member, Elena Kagan, is likely to have less of an impact due to the considerable number of recusals, 24, mostly based on her past work with as a Solicitor General. On the ballot are several interesting cases, including:

1. Snyder v. Phelps: this case has to do with an anti-gay protest that took place at the funeral of Ablert Snyder's son, who was a marine killed in Iraq. Protestors screamed, carried signs saying "you're going to hell" and "God hates fags," as well as throwing epithets.

2. FCC v. AT&T: in this case the Court will address whether the exemption from disclosure of certain records under the Freedom of Information Act applies to corporations as well as individual persons.

3. Kasten v. Saint-Gobain Performance Plastics Corp: this case will settle the question of whether or not someone who is closely associated with an employee who complains of discrimination is protected from retaliation. In this case the employee who complained of discrimination's fiancee was fired.

To learn more about trials at the Supreme Court, watch our course by Herold Price Fahringer "Arguing in Front of the United States Supreme Court"

To read the full article, click here

SEC Sued Over New Corporate Proxy Rules

September 30

A suit has been filed against the SEC in regards to new rules passed imposing regulations on American companies. The SEC adopted rules on August 25^th requiring companies to include in their proxy materials the nominees of “significant, long-term shareholders.” The rules are designed to allow shareholders to exercise their traditional rights to nominate and elect members of company boards of directors. However, a suit was filed Wednesday by the U.S. Chamber of Commerce and the Business Roundtable against these rules, claiming a violation of the Investment Company Act, the Securities Exchange Act, the Administrative Procedure Act as well as various issuers’ rights under the fifth and first amendments. The allegations are that the SEC did not consider the costs these rules will impose on companies, and by extension shareholders and workers. Also, they claim that they will lead to costly election contests, and the SEC is guilty of “arbitrary and capricious” treatment of state law.

To learn more about the SEC watch our course by Ernest Badway "Transparency at the SEC: A Response to the Current Financial Crisis"

To read the full article, click here

Demand for Legal Jobs Falls Flat

According to a new study at Hildebrandt Baker Robbins, conducted by Lisa Smith, the future of many legal jobs may be in peril. Smith, who is the head of the consultancy firms strategy and structure practice group, concluded in her analysis that due to many trends in outsourcing and flat demands for legal services, there will be a fundamental adjustment in how firms hire and compensate non-partner employees. Smith’s claim has been chided as inaccurate in legal blogs, including some who think that the study is an attempt to pander to what Biglaw partners want to hear.  Smith says this is not her intent, but is a fact based on the current general economic trend taking place broadly across industries. She says that with less economic activity clients won’t need as much legal work. Therefore, firms will become much more sensitive to the price of litigation and other work.

To learn more about employment law watch our course by Denise Hasbrook, "Vital Considerations in Todays Employment Decisions"

To read the full article, click here

Spy Swap Forced Prosecutors Into Balancing Act

This article from the New York Times discusses the ethics behind the “Russian Spy” incident that exploded over the summer. What should’ve been a criminal case became “a deal orchestrated by politicians”, where American and Russian governments agreed to end the criminal prosecution of the 10 accused Russian spies and engage in a spy exchange instead. The article examines the ethical dilemma the prosecutors were faced with in deciding whether dropping the case and acquiescing to a trade was the right thing to do. Many others involved in the case question whether the lawyers (both defense and prosecution) weren’t merely pawns  and the trial was merely a political maneuver operating outside the justice system.  In the end, Mr. Bharara, the US Federal Prosecutor in charge of the case, said that after studying historical precedent of spy trades, he concluded that the deal being brokered by the politicians was acceptable and that in the modern world justice has to be consistent with national security.

for full article click here

to learn more about the Federal criminal law take a look at this course taught by Rocco C. Cipparone, Jr.:

Handling Federal Criminal Cases

Labor Dispute Grows Out of Social Media

As the growth of social media continues to transform how we communicate and interact, there are increasing legal difficulties determining acceptable practices in the workplace. In 2009 the Division of Advice addressed a potential case regarding a Sears’s policy banning disparaging comments about the executive leadership, employees or the corporate strategy. The board decided that this was not a violation of Section 7 of the Labor Relations Act. They said that while the ban, if thought about in isolation might hinder workers’ rights, it is given in enough context that it is not a violation of the Act. However, the future is unclear because the composition of the Labor Relations Board has since changed and the new members are likely to take a different stance. So employers must be careful in the policies they implement until the Board to outline the rules after a new case is brought to them regarding social media.

To learn more about Social Media, watch the course here

To learn more about the National Labor Relations Board, watch the course here

To read the Full Story, click here

Judge to Approve $75 million Citi Settlement
September 27th

• Federal District Judge Ellen Segal Huvelle said Friday she would approve of a $75 million settlement between Citi bank and the SEC.
• The case currently in progress between the SEC and Citi is over misstatements relating to the exposure of roughly $40 billion in subprime mortgage securities.
• The misstatements by Citi were made in the fall of 2008.
• The settlement has received wide criticism, as many see it punishing already victimized shareholders.
• Citi and the SEC both hold, however, that although the company had poor disclosure procedures, they did not have the intention of deliberately misleading shareholders.

Find out more about the history and role of the SEC, watch the course here

Find out more about maintaining corporate record books and disclosure practices, watch the course here

Find the full article here

Lawline.com congratulates Elena Kagan who was just confirmed by the Senate in a 63-37 vote as the 112th justice to the United States Supreme Court.  Ms. Kagan will be the fourth woman ever to sit on the United States Supreme Court, and joins Justices Sonia Sotomayer and Ruth Bader Ginsburg to form the first ever bloc of three women to serve on the Court at the same time.  Though Kagan, who is currently the U.S. Solicitor General, has never served as a judge, her diverse professional background includes clerking for a Supreme Court justice, being the Dean of Harvard Law School, and working for the Clinton administration.

Once on the Supreme Court, Kagan will likely have the opportunity to weigh in on the current prominent cases in California where a judge recently struck down the state’s ban on same sex marriage and in Arizona where a judge blocked several main components of the strict immigration law.

To learn more about Supreme Court justices, watch Lawline.com faculty member Herald Price Fahringer’s popular course, Arguing in Front of the United States Supreme Court.  Fahringer, who has argued in front of the Supreme Court 14 times, shares his insights into the inner workings of the Court and also gives helpful tips on how to adequately prepare your Supreme Court arguments.

On Wednesday, U.S. District Judge Susan Bolton blocked several main components of Arizona’s strict immigration law bill only hours before it was set to takeoff.   This obstruction was viewed as a victory to the Obama administration as it attempts to maintain jurisdiction on this matter.

Arizona state officials are prepared to fight and while recognizing that this will be a long legal battle, they are not showing any signs of slowing down.   Governor Jan Brewer has already stated that an appeal will be filed to have the provisions reinstated.

The law was passed by the state-legislature three months ago and created tougher immigration regulations that were expected to drive out nearly half a million illegal immigrants from Arizona.  Some of the provisions that were blocked include: the requirement for immigrants to carry their papers on them at all times and the requirement of police officers to determine the status of immigrants if they had justified reasoning to believe they are illegal.

The rulings by Judge Bolton have been considered a great triumph for Obama and his goals towards creating a comprehensive policy that compromises with the Republicans’ contrasting agenda.   The administration is aiming to not condone illegal immigration, but to provide a way for the illegal immigrants to attain legal status and contribute positively towards society.

However, Arizona’s plans to move forward with an expedite appeal are keeping Obama’s golden goal still out of reach.  It would not be unexpected for the case to reach the U.S. Supreme Court, but in that case this battle will not just be a very long one, but a very costly one at that.

So, what is your take on the matter?  Is Arizona's tenacity going to result in tougher Immigration laws? Or is this White House victory just the first of many, providing hope that someday illegals will be accepted and legal members of society?

Check out Lawline's newest Immigration Law courses to keep informed on the latest in Immigration Law.

The Federal Trade Commission filed a 75 page brief this past Wednesday in an appeal from the United States District Court for the District of Columbia, arguing that lawyers should be held to the "red flag" standards that have pushed creditors to increase their role in the prevention of identity theft.

The appeal stems from the American Bar Association's suit against the FTC for its regulations of the legal profession and loose interpretation of the term "creditor" In August 2009.  U.S. District Judge Reggie Walton of the District of Columbia ruled in favor of the American Bar Association.

The FTC states in the brief that the definition of "Creditor" in the Fair and Accurate Credit Transactions (FACT) Act of 2003 and the Equal Credit Opportunity Act indeed encompasses lawyers. The brief states, "The entities to be covered under the identity theft provisions are to be covered based either on their status as a “financial institution” or on activities that make them a “creditor.”

Since lawyers often take cases without being paid in advance, the FTC, in this definition, argues that they should be considered to be creditors.

Recently, Lawline.com's Yan Ross produced two CLE programs on this issue. The identity theft expert examines the newly implemented anti-identity theft legislation and the ethical implications of complying with the FTC’s Red Flags Rules.

In his first program, FTC's Red Flags Rules Series: Ethical Implications for Attorneys and Their Clients, Mr. Ross engages the viewer in a discussion of the tangible and intangible costs and benefits of observing the new regulations and the reasons why attorneys have been exempted from compliance in his program .

Ross also examines the FTC’s role in policing identity theft and discusses the principal provisions of the Red Flags Rules in a second program entitled, FTC's Red Flags Rules Series: Are You Ready for Enforcement? Talking points include the history and development of the new legislation and the practical implications of compliance with the rules, and penalties for non-compliance.

You arrive at your desk and the day starts like any other - dialing your voicemail while simultaneously typing an email.  But today, you notice that a new file has been added to your mountain of work.  “New Jersey?!?” you shout.  “We do business in New Jersey?”  You collect yourself and acknowledge that yes, of course your company does business in New Jersey; but it has never been sued there.  Thoughts of New Jersey stereotypes run through your mind: runaway jury verdicts, traffic jams, the Sopranos, and Joisey accents.  You think to yourself, “we’ve got a Situation.”

Stereotypes aside, you realize that you’re no longer on your home turf and need to get acquainted quickly with New Jersey’s “local customs” in order to get your arms around this complex matter.  Here are ten little known facts about New Jersey’s state and federal court systems.

A.    New Jersey State Courts

New Jersey's state court system consists of municipal courts, tax courts, the Superior Court (the trial court), the Appellate Division, and the Supreme Court of New Jersey.  There is a superior court in each of New Jersey’s twenty-one counties, which are grouped into fifteen vicinages for administrative purposes.  There are approximately 360 superior court trial judges, and each year parties file about seven million new cases in New Jersey's courts. 

1.    Trial Court Split:  The nature of your case and the type of relief sought will determine where your case will be heard.  New Jersey is one of only four states to retain a separate chancery court.  The vast majority of civil cases are heard in the Superior Court, Law Division.  However, actions in which the plaintiff’s primary right or the principal relief sought is equitable in nature (and not monetary) shall be brought in the Chancery Division.  Such equitable matters include receivership actions, foreclosures, and the immediate enforcement of restrictive covenants. Generally, equity actions are not triable by jury.  Both the Law and Chancery divisions have the power to afford full legal and equitable relief, but a blatant misfiling of a truly legal issue in the Chancery Division is strongly disfavored. 

2.    eDiscovery: Make Meet & Confer a Priority:  New Jersey became one of the first jurisdictions to adopt eDiscovery court rule amendments that address specifically the proliferation of electronic documents and their impact on lawsuits and the discovery process.  In complex cases with e-document-heavy discovery, a mandatory meeting among counsel and technical experts is critical to setting the tone for an orderly and manageable exchange of electronic information.  Although modeled after the federal rules, New Jersey’s court rules do not have an equivalent to the federal rules’ mandatory meet and confer rule, which requires all parties to promptly meet and confer regarding discovery needs.  New Jersey’s court rules do, however, allow for parties to apply to the court to schedule a case management conference to address eDiscovery and related complexities.  Specifically, the rules provide that counsel may ask the court to schedule a conference if it appears that such a conference will assist discovery or otherwise promote the orderly and expeditious progress of the case.  In complex cases with e-document-heavy discovery, a meeting among counsel is critical to setting the tone for a manageable exchange of eDiscovery; so make an early application to the court for such a conference.

3.    Daubert Standard: Not Quite (Yet):  New Jersey has not codified or expressly adopted the Daubert standard for the admissibility of expert testimony.  In New Jersey, parties must satisfy three basic requirements for the admission of expert testimony: the testimony is beyond the ken of the average juror, the field testified to must be at a state of the art such that an expert’s testimony could be sufficiently reliable, and the witness has sufficient expertise to offer the intended testimony.  In cases involving injuries caused by drugs or toxic substances, however, New Jersey courts have used a Daubert-like test, stating that expert testimony is admissible if it is based on sound, adequately-founded scientific method involving data and information reasonably relied on by experts in the field.  Be certain that your expert’s reasoning satisfies the applicable standard in order to avoid wasting money and effort compiling inadmissible evidence.

4.    Deposition Testimony Will Be Part of the Trial?  The court rules provide that a deposition of a witness may be used by any party for any purpose against any other party who was present at the deposition, if the court finds that the appearance of the witness cannot be obtained for reasons such as death, illness, imprisonment, or the witness is out of state.  In some cases it will be necessary to depose a non-party witness who does not reside in New Jersey and will be unavailable for trial.  Because that witness’ deposition testimony may be admissible at trial, that deposition should not be handled lightly.  In one case, the court admitted the telephone deposition of a non-party witness who lived in Hawaii where opposing counsel participated in the deposition and had an opportunity to cross-examine the witness.  Thus, be prepared to cross-examine and make proper objections during the deposition of a witness who later may be deemed “unavailable.”

5.    “Bending” the Rules:  The often forgotten court rule 1:1-2 lingers and could spell disaster to the unsuspecting lawyer.  Rule 1:1-2 provides that the court rules shall be construed to secure a just determination, simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay. Unless otherwise stated, “any rule may be relaxed or dispensed with by the court” in which the action is pending if adherence to it would result in an injustice.  Although used sparingly, this rule allows judges to dispense with the rules if the circumstances call for it.  There are numerous reported decisions where the court invoked the rule.  Just when your client thinks it obtained a favorable result, this rule could change the outcome.
  
B.    United States District Court for the District of New Jersey

New Jersey’s federal court system is comprised of a single judicial district with three divisions located in Newark, Camden, and Trenton.  The Clerk of the District Court will consider the defendant’s residence, the convenience of the parties, counsel and witnesses, and the origin of the cause of action when allocating cases amongst the court’s three divisions.  There are twenty-four district court judges and ten magistrate judges.  Last year, parties commenced nearly 6,700 actions in the District Court of New Jersey.

1.    Strict Adherence to Proper Form:  The local civil rules provide that the first paragraph of every initial pleading, motion, or other form must recite the address for every party named in the case, and that the first page of each filed paper bear counsel’s address.  This rule is designed to assist the Clerk when determining which division will hear the case.  In addition, litigants, as well as attorneys, must advise the court of any change in address within seven days.  These requirements may sound rudimentary, but a failure to adhere to these rules may result in sanctions.  Case law supports the court’s imposition of harsh penalties, including dismissal of a complaint, for violations of the local rules.  Do not let a simple technicality end your case before it even starts. 

2.    Need a Little More Time?  Pursuant to the local “breathing room” rule, a party, without notice to an adversary, may obtain an initial fourteen-day extension from the Clerk to answer a complaint.  If the application is made in writing, prior to the expiration of the time to answer, the Clerk will grant the extension.  The extra fourteen days can be used to formulate case strategy, prepare preliminary motions, or negotiate an early settlement.  Be sure your application for an extension is timely, and use the extra days to your advantage. 

3.    Magistrate Judges’ Importance:  Magistrate judges play a critical role in the district.  Magistrates are the case management “gatekeepers” responsible for adjudicating case management motions, determining non-dispositive pretrial motions, conducting hearings, making recommendations to the district judge on dispositive motions, and, in some cases, presiding over trials.  In the Newark vicinage, magistrates are assigned to particular district court judges.  In Trenton and Camden, magistrates assist district court judges on a rotating basis.  Due to the court’s high volume of complex litigation, the district recently increased its number of magistrates.  Knowing the customs and expectations of both district and magistrate judges (most of whom have their own personal practices) will enhance your chances of success during and prior to trial.    

4.    eDiscovery Gets Hyper-local:  New Jersey’s federal courts have been in the forefront of eDiscovery issues.  The local rules provide detailed instructions on how to address eDiscovery.  For example, local rule 26.1 imposes an obligation upon counsel prior to the initial conference to thoroughly understand a client’s information management system, how information is stored, and how it can be retrieved.  These local rules get ever more hyper-local with some judges asking parties to identity IT representatives and produce them for depositions before discovery commences.  This local rule and each individual judge’s practices should be considered for proper compliance. 

5.    Don’t Fall for the Calculatedly Evasive Verification:  All too often, parties hedge their responses to interrogatories by submitting a verification that qualifies the responses as being made “upon information and belief.”  Local rule 33.1 provides that if the person verifying the answers does not have personal knowledge of the information set forth in the answers, the witness must articulate which answers fall into that category and identify persons with personal knowledge from whom the information was obtained.  Don’t let a deficient verification slide without an objection.

New Jersey’s state and federal judiciary is among one of the most respected in the country, and with a strong familiarity of New Jersey’s legal terrain you can vastly improve your likelihood of success in litigation. 

Fernando M. Pinguelo, a trial lawyer, Member of Norris McLaughlin & Marcus, and Co-chair of its eDiscovery Group, founded the ABA Journal award-winning eDiscovery blog, e-Lessons Learned, where law, technology, and human error collide.  Andrew D. Linden, an associate of the firm, practices in its Litigation and Appellate Practice groups.  To learn more about New Jersey’s unique legal landscape, email info@NJLocalLaw.com or visit www.NJLocalLaw.com.     
 

Knewton is an online LSAT prep course provider that is anything but traditional.  Its test experts have developed the industry’s first adaptive learning engine, allowing students to receive customized prep courses that meet their every need. 

How do they do it?  Knewton has assigned tags to each piece of content learned in its courses.  These tags categorize every concept to an atomic level.  By doing this, Knewton can track a student’s interaction with each concept and assess which videos, lessons, and practice problems are most effective.

For example, if Knewton detects that a student learns certain concepts better by watching videos, then related concepts will also be taught through videos.

Knewton’s unique and innovative services have enticed the brightest, most experienced LSAT teachers to join its team.  And through live and on-demand video classrooms, their guidance can be provided to students, wherever and whenever they wish to seek it.

Former CEO of Kaplan, Greg Rorke commented that “Knewton has rendered every other test prep company totally obsolete.”  This comment, along with admiring testimonials are proving Knewton’s bold statement, “learning will never be the same” to be spot-on.

For more information on Knewton, visit www.knewton.com/lsat
 

Federally-mandated negotiations began recently to resolve an on-going labor dispute between Boeing and striking aircraft workers in Long Beach, California.  Federal mediators from the Federal Mediation and Conciliation Service convened the negotiations and previously provided negotiation training to both sides.

Why consider a mediator?  It is often beneficial, when an impasse has been reached, for the parties to first agree on a process they believe will lead to a better result.  Both lawyers and business people often resolve lawsuits and other disputes by bringing in an independent third party to either decide the issue (arbitration) or help them negotiate with each other in a more effective way (mediation).

Mediation is particularly effective in disputes involving high emotions and potential future relationships between the parties, both of which are present in the Boeing labor dispute.  Skilled mediators can help parties successfully engage in almost all aspects of the negotiation process.  Two factors should be evaluated before agreeing to use a mediator.  Do both parties agree using a mediator will:

1. Increase the likelihood of achieving a “fair and reasonable” result and
2. Ensure a better result than their respective best alternatives? 

If affirmative, mediation should be considered.

Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts' proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com.

The iPad's early success indicates that it is the next revolutionary step in both personal and business life. As a result, forward looking business are initiating compatible applications to meet the predicted demands of consumers. The following is a recent press release regarding title insurance agency Titlevest's new iPad technology in which attorneys can review documents electronically in their iPad in a near identical manner as a printed document. 

Titlevest's New Interactive Online Report™, in Tandem with Apple's IPAD, is a Watershed for the Legal Industry

New York, NY – June 2, 2010 – TitleVest’s newly-launched Interactive Online Report™, a web-based application which streamlines the title insurance review and closing process making it swifter, more comprehensive and thorough than the traditional method of reviewing reams of printed documents, is revolutionary in its own right.

But when TitleVest President and CEO Bill Baron had a hunch that the Online Interactive Report’s™ functionality might be enhanced by running it on the iPad introduced in early April, Baron’s concept instantly became a watershed for the legal industry.  Initially intended for use on a desktop or laptop prior to the introduction of the iPad, it turns out that the application is a perfect match for the size and scope of Apple’s hot new product.

“It’s as if they were made for each other,” said Mr. Baron.  “What makes the Interactive Online Report™ so ideal for the iPad is that it enables attorneys to review reports electronically in virtually the same manner as if they were working with a printed document—by holding it wirelessly and almost weightlessly in their hands, being able to share it as a ‘living’ tablet with colleagues, being able to slip it into a briefcase, and being able to magnify small print as well as to view documents from both a vertical and horizontal perspective.  Virtually every one of our attorney clients who has experienced our Interactive Online Report™ on an iPad has totally embraced the paired technologies.”

Interactive Online Report™ enables all parties involved in a real estate conveyance to view documentation 24/7.  If any party updates the information, changes are updated online and an email notification is sent so that everyone may view the revised report.   The portal offers users the ability to schedule closings and order transfer tax forms and/or IRS Form 1099, complimentary to all parties involved on the transaction.  And post closing, the site provides recording confirmation of all closing documents and archival copies of all title insurance policies.

The Interactive Online Report™ is particularly user friendly and intuitive and it’s Web-based, so it can run on any computer. TitleVest clients were just beginning to use the program prior to Apple’s release of the iPad.  It is equally powerful whether viewed on the iPad or on a computer, but the iPad offers a very distinct ‘comfort’ advantage.

“The product is hot off the press, we are just now encouraging our clients to use it,’ said Mr. Baron, “and based on the feedback, it’s evident that users will be hard-pressed to go back to the traditional method of reviewing paper reports once they’ve experienced the virtues of our interactive version.”

About TitleVest

Founded in 2000, TitleVest (www.titlevest.com) is a leading privately held New York City-based title insurance agency offering a full range of title insurance and related services throughout the United States, from large complex commercial transactions to residential purchase and mortgage refinances. TitleVest is a policy issuing agent for six of the nation’s largest and highest rated title insurance underwriters, namely First American Title Insurance Company of New York and Chicago Title Insurance Company, Fidelity National Title Insurance Company, Stewart Title Insurance Company, Old Republic National Title Insurance Company and Commonwealth Land Title Insurance Company.  TitleVest is also an industry leader in developing proprietary web-based solutions for its real estate professional.  Two of its most popular offerings are ACRISasap™, which streamlines the creation of  NYC/NYS transfer tax documents, (for which TitleVest has been issued a U.S. Patent and has another Patent Pending).

Solo Practice University (™), has been making many headlines the past few weeks. The online university is the leading web-based educational and professional networking community for solo lawyers and law students. Yesterday, the company and Lawline.com announced their new partnerships in which newly enrolled students can gain access to one-year of unlimited CLE with Lawline.com

The buzz continues to grow regarding Solo Practice University's(™) stand-out program. The following is an article published today from Law.com entitled "Spinning Solo":

"If there is anything on which lawyers agree, it is that law schools fall short in one critical regard. They teach the  process  of law, but not the  practice  of law. This is a particular handicap for the solo lawyer, who has to be not only lawyer, but also chief cook and bottle washer, all without a colleague or mentor to turn to for advice.

Enter Solo Practice University"... click here continue reading.

For more information regarding Solo Practice University (™), please visit www.solopracticeuniversity.com

As summertime is nearing and the weather is warming, many of us want to maximize our time outside under the sun. There’s good news for those who share this thinking in Texas.

New Texas State Bar MCLE regulations are broadening the definition of participatory credits. This change will allow for downloaded MP3 audio courses to serve as participatory credits, meaning attorneys can meet all 15 CLE hours in this manner. The regulation will take effect June 1.

The following is the text from the Texas State Bar’s webpage:

Beginning June 1, 2010, the definition of “participatory” will no longer be the focus of, or a requirement for Accreditation of CLE activities. Instead the focus of “Accredited CLE” will be on content of a CLE activity, and not on delivery method. CLE sponsors will be able to receive accreditation for downloadable CLE activities, such as podcasts and other non-interactive audio/video programs and members of the State Bar will have a variety of new options for compliance with MCLE requirements.

So go for a run, attend your child’s soccer game, and enjoy the sun. Remember, you can now bring your CLE with you.

To learn more, visit www.texasbar.com

The New York Times recently reported that the headquarters for the airline resulting from the proposed merger of United and Continental will be in Chicago.  This decision comes close on the heals of Chicago’s successful wooing away of  both United’s corporate offices and operations center from a suburb near O’Hare Airport with the promise of over $40 million in incentives.

Chicago beat out Houston, long-time home to Continental.  While Houston’s mayor told reporters, “(t)he competition’s now just started,” it’s clear Houston arrived late to the table.

What negotiation lesson can we learn?  Get your deal done when your leverage is strong.  Here, Chicago appeared to close the deal before Houston had even entered the game.  Chicago’s successful negotiations to attract United’s corporate offices and operations center gave it the momentum and access it needed to move very quickly here.  While disappointed, Houston residents can take solace in the fact Houston will be the merged airline’s biggest hub.

Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts' proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com.
 

Experts, Summary Judgment and Legal Malpractice

It is an anachronism in New York practice that there is no specific time in which to name an expert.  While the 3d and 4th departments have rules that derive from case law [and not specifically, the CPLR], the 1st and 2d Departments are much looser.  In general, a "reasonable time" period obtains.  There are some courts which will require that the expert be named 30 days or 15 days prior to trial,  there is no unanimity of what day that might be.  Is it the first day of jury selection?  is it the first day of testimony?

On a finer level of analysis is the relationship of naming an expert pursuant to CPLR 3101 and motions for summary judgment.  In the 2d Department, especially Kings County, a body of law has arisen which holds that one must name an expert and serve a CPLR 3101 notice prior to the note of issue.  Here is an excerpt from Sierra v. D'Apuzzo, 6321/08;Decided: April 21, 2010;Judge Robert J. Miller;KINGS COUNTY;Supreme Court.

"Before the Court considers whether the landlord caused or created the condition or had actual or constructive notice of the condition, the Court must first address the threshold issue of whether the plaintiff's expert's affidavit should be considered in opposition to the defendant's motion. The defendant in reply to the plaintiff's opposition asserts that the Court should reject the plaintiff's expert's report pursuant to Construction by Singletree, Inc. v. Lowe, 55 AD3d 861 [2d Dept 2008]. The Appellate Division, in Singletree rejected a plaintiff's expert affidavit in opposition to the defendant's motion for summary judgement because the plaintiff's expert was not identified until after the note of issue and certificate of readiness were filed and the plaintiff offered no valid excuse for failure to give notice of the expert.

An Everyday Application of Fiduciary Breach and Deceit

Here is a short decision with deep reaching consequences.  In Kurman v Schnapp ;2010 NY Slip Op 03786 ;Decided on May 4, 2010 ;Appellate Division, First Department we see the deceitful act of an attorney, and the Appellate Division substituting its finding for that of Supreme Court.  We have commented on the natural inclination of attorneys, applying rules of attorney behavior to other attorneys, to minimize and overlook.  How, one asks, could Supreme Court have come to such a different conclusion from the Appellate Division?
 
"Plaintiff stated a cause of action under Judiciary Law § 487 by alleging that defendant deceived or attempted to deceive the court with a fictitious letter addressed to him from the former licensing director of the City's Taxi and Limousine Commission (TLC) that stated, inter alia, that plaintiff was under a lifetime ban on owning any licenses with the TLC (see Amalfitano v Rosenberg, 12 NY3d 8, 14 [2009]). Plaintiff further sufficiently alleged specific damages that could not have occurred in the absence of defendant's conduct (see id. at 15). The 2008 affidavit by the TLC's former licensing director offered by defendant in support of his motion fails to demonstrate conclusively that plaintiff has no cause of action (see Lawrence v Graubard Miller, 11 NY3d 588, 595 [2008]).

Famous Songwriter, the Pullman Financing and Legal Malpractice

Lamont Dozier, author of "Baby I need your Loving" [the Four Tops], "Baby Love", "Back in my Arms Again", "Come See about Me" [The Supremes] and many many others, got snagged in the Pullman financing scheme. the Pullman Bonds.  Before him, David Bowie was the recipient of the financing arrangement.

In LAMONT DOZIER, Plaintiff, - against - WILLKIE FARR & GALLAGHER LLP, DEUTSCHE BANK TRUST COMPANY AMERICAS;  09 Civ. 9865 (LMM); UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;2010 U.S. Dist. LEXIS 42321; April 26, 2010, Decided  we see a simple discussion of amendment of pleadings.

The motion for leave to amend is denied, first, because it contravenes the November 9, 2009 stipulation and, second, because amendment as to Willkie (against whom, alone, the new claim is asserted) would be futile as time-barred.
 

By controlling its own technology platform end-to-end, M5 has the advantage of being nimble.  Software implementations can be easily tailored to meet the specific needs of individual customers and vertical industries.  "It is a great feeling to be able to listen to client requests and then implement these real, business-impacting ideas into software," said Hoffman.

John Ziegler, CEO of Biscuits and Bath, comments, "We weren't getting any benefits out of our phone system. Within two months of deploying M5, we saw a 19% increase in sales. Staff work faster and deliver higher levels of service.  The real-time intelligence lets us see activity clearly, across five locations and in real-time.  We refined our processes quickly, and achieved a big boost."

David Schnurman, founder of Lawline, Inc. adds, "Features like click-to-dial made my team more productive, but more than that, I had visibility into sales activity that I never had before.  M5 enabled me to build a predictable sales machine that I could confidently scale up to almost ten times the size it was before M5."

Hoffman notes, "Our list of more than 1,100 satisfied customers includes some of the most discriminating and demanding organizations in the country, including a number of cutting-edge, hi-tech media companies.  Our clients include Amnesty International, West Point Military Academy, and Third Avenue Funds, to name just a few.   Our Smart Business Phone System allows us to affordably drive use of advanced voice applications that can give businesses a competitive edge."

For more information about M5 Networks' industry-leading VoIP phone systems for business, visit www.m5net.com.

DEADLINE EXTENDED TO WEDNESDAY, MAY 19, 2010

The Best Accountants and Attorneys for Growing Businesses is an awards program being presented by The New York Enterprise Report.  This special awards program will recognize the New York area's top business advisors.
 
This is the only program in the New York tri-state area that recognizes these advisors in front of their clients. 
 
The program will culminate in an event in June where these top accountants and attorneys will be revealed. The advisors will also be recognized in a special section within the August issue of The New York Enterprise Report as well as on the web at www.nyreport.com.

Attorney Categories Include:

• General Category: Attorney of the Year, Rising Star of the Year, Lifetime Achievement
• Practice Area: Bankruptcy & Reorganization, Commercial Litigation, Employment Law, General Corporate Law, Financing, Intellectual Property, Real Estate
• Industry Focus: Entertainment/Media, Environmental/Energy, Healthcare/Life Science, Professional Services, Technology

For more information on the awards program and to fill out your nomination please visit www.nyreport.com/bestadvisors or call 516-997-1950 for assistance with this awards program.

Land use and zoning attorney Stuart Beckerman recalls his path to finding his practice of law. He also describes a recent favorable decision that he obtained for his client and even the city of New York. Finally, Beckerman explains what keeps him passionate about his work and why he could not be happier professionally.

SELECT A MEDIATOR WISELY (if you have the chance to)

If you are sent to mediation by a court you may have no chance to select your mediator. (However, some courts, like New Jersey Superior Courts, randomly assign a mediator but allow the parties to choose someone else.) If you do have the opportunity to do so, talk with two or more mediators to get a sense of what they are like. Look for intelligence, experience and a style that you feel comfortable with. Of course your adversary has to agree. If a mediator has prior experience with your adversary do not assume that will work to your disadvantage—it may even help your case if your opponent feels comfortable with the mediator and able to maximize the process.

PREPARE THE CASE

You need to be on top of the facts and your client’s needs/demands and have some rough sense of the strength of your legal case. Sometimes counsel neglect this step, figuring that they will really learn the case before a deposition or a trial. If you come to the mediation poorly prepared, you may miss an opportunity to get a good resolution.

PREPARE YOUR CLIENT

A client who understands that s/he is entering into a negotiation process and that the mediator is a facilitator, not a fact-finder, will be better positioned to make the most of the process.

The client should also understand that you will not be making dramatic statements, taking the most extreme position possible or presenting a case as you would do at trial. The whole tone of the proceeding is different and the client should be prepared if s/he hasn’t participated in mediations before.

Encourage out-of-the-box thinking, even in pure money cases. There is generally something (even if only the pay-out schedule) at stake besides the bottom line. A goal of any mediator is to enlarge the pie or find more options to include in the settlement.

Some mediators like to hear from the parties as well as counsel—you can decide if that is wise in your case.

HOSTING THE MEDIATION

Some lawyers prefer to hold the mediation in their own offices, rather than their adversary’s or a neutral place. It saves travel time, lets you begin with a comfort level, etc. It probably has little effect on the outcome, but can make the experience more pleasant for you and your client. If you do this, be a good host— and don’t forget to order lunch (or dinner) if the session goes through the lunch hour. This can affect the outcome—hungry and cranky adversaries are less likely to stay with it to resolve the case.

DON’T POSTURE

LISTEN, REALLY LISTEN

Try to hear what opposing counsel or the principal is really saying and what underlies it. You don’t have to agree with anything but make a major effort to get it. In addition to making you seem polite and not irritating anyone, it could help you emerge with a better sense of where your adversary is coming from and what you will face at trial or in future settlement conversations if the mediation does not immediately resolve the issue.

DON’T INTERRUPT

Courtesy (more than just civility) counts for a lot to succeed at mediation, more than in the courtroom.

NO ATTACKS

You or your client may believe that your adversary has gone beyond self-serving statements and is lying. Resist the temptation to point that out. Also resist explaining to the mediator how past excellent offers to settle were dismissed by your adversary or how s/he has made the whole process more complicated than need be. And so on. Attacks can be truly counterproductive and cause your client to lose an opportunity for a satisfying settlement.

USE CAUCUSES WELL

In many mediations you will spend a substantial amount of time in private sessions with the mediator (how substantial depends on the mediator’s approach and the facts and relationships in the case). You can, of course, meet with your client without the mediator and this can give you the chance to coach the client on using the process well if s/he seems to have lost sight of your preparation on this score.

The mediator is bound to keep confidential what you talk about, with very narrow exceptions. This can be an excellent opportunity to tell the mediator anything that you do not want out in the open—any hidden or complicating facts; your assessment of the case; true bottom line—and to ask him or her for an objective assessment of the case or any aspect thereof.

You can also sometimes make use of the mediator to help your client hear something that s/he wouldn’t hear from you (i.e., that the case is not a slam-dunk one sure to turn out exactly as hoped for).

BE CANDID WITH THE MEDIATOR

There is nothing to be gained and much to be lost from misrepresenting facts or positions to the mediator. S/he is there to help you reach a settlement that you want.

BATNA (Best Alternative To A Negotiated Agreement)

This is the mediator’s mantra—where will you be, what will happen if you don’t resolve this matter in mediation. It’s very worth your thinking about: the unpredictability (depending on how you assess your case); delay and costs (financial and psychic for the client) of litigating. Be realistic and help the client do so as well.

PREPARE TO DRAFT A SETTLEMENT AGREEMENT AT THE MEDIATION

Sometimes when an agreement is reached, a memo embodying the key points is drafted by the parties or the mediator. In other cases counsel want to finalize the settlement agreement on the spot to make sure that the meeting of minds is exactly that. It is wise to bring a copy of your standard language.

Whether the settlement agreement is completed at the mediation or not, offer to do the first draft—it gives you more control.

Nancy Kramer is a mediator, attorney and arbitrator who mediates on a variety of matters including employment, commercial, family and co-op/condo. She serves on numerous mediation panels, including the American Arbitration Association (AAA), US Postal Service, US Federal Occupational Safety (FOH) and New Jersey Superior Court, as well as the New York Supreme Court, Appellate Division, First Department and Manhattan Supreme Court, Commercial Division.

Nancy regularly develops and presents mediation seminars, for the American Society For Trainers & Developers (NYC), New York City Bar Association; New York State Attorney General’s Office, New York City Corporation Counsel, Practicing Law Institute (PLI); Touro Law School, other bar associations and a number of psychoanalytic institutes. She is a frequent coach/facilitator at seminars for  law schools and others.

Nancy’s background includes over 30 years experience as a lawyer and more than 350 mediations. She is the principal of Nancy Kramer Mediation & Other Dispute Resolution Services, whose website is 
www.nancykramermediation.com.

Public relations is the art of changing perceptions. One is either managing, building and/or changing perception with groups or stakeholders whom the success of a business is highly dependent on. Stakeholders or interest groups may include:

1. The press

2. Current clients

3. Prospects

4. Trade and industry groups, essentially anyone who can assist in the growth of business.

All these relationships are managed, guided and steered effectively by good public relations practitioners. Yes, lawyers, it’s the relationships not the transaction. Rightly or wrongly how many times have you heard the expression: “it’s all about perception”. Look what happened to New York City Mayor Rudy Giuliani after September 11. His reputation literally skyrocketed into the stratosphere. Of course since his foray into national politics,  one could argue his reputation has changed somewhat.

Well, a good public relations IS all about perceptions. A note of caution: public relations is not only about putting seminars together, getting published, speaking, or sending out the odd news release to the media. What good public relations does is change behavior. This, in turn, facilitates business growth. For example, your firm may want to:

1. Be seen in a more favorable light in an important target group. (This could be the firm’s ideal client target market);

2. Demonstrate how the firm’s services are different from its competition;
Communicate effectively the firm’s participation in a particular community that is critical to the growth of the firm;

3. Showcase attorneys in the firm who are experts, those at the top of their game in a specific area of law.

If you’re still not clear ask yourself, when was the last time you or another attorney in your firm received a call from the press regarding input on a story they were working on? When were you last invited to speak by a trade or industry group? When was the last time your work was published? Remember the old axiom of “publish or perish.” Of course getting published is in today’s internet driven is quite easy. But, it still doesn’t match the value and prestige of getting ink in a well-respected publication. Unquestionably it is  a critical component in building your firm’s reputation.

A common question I am frequently asked while talking to law firms, particularly those who are considering public relations initiatives is the difference between advertising and public relations. One is based on building credibility, visibility and reputation through third party endorsements. The other is essentially paying to be seen and heard.  Typical questions range from: which is more effective?  Which tactic should we start with? What can we implement in-house? And of course the investment and when will the firm see return on investment.

For firms considering advertising experts such as Al Reis, author of marketing classic "Positioning: The Battle For Your Mind"   advises that its best to start with public relations initiatives and then build upon awareness and visibility with advertising.  

Each tactic including social media has its merits. One thing is for certain, regardless of whether these strategies are implemented by in-house staff and or external agencies; success is dependent on the right hand knowing what the left hand is doing. Otherwise, it will be yet another case of throwing things at the wall and hoping that one of them will stick!

Bottom-line perceptions matter more than facts. Can you afford to ignore public relations? Call us directly 646-763-1407 for a free no cost no obligation strategy session.

Paramjit L Mahli is with award winning SCG Legal PR Network. She is a former journalist who has worked with CNN Business News, Canadian Broadcast Corporation and Journal of Commerce. Comprised of small and large firms, SCG Legal PR Network connects legal experts with reporters nationally and internationally. Ms. Mahli is a contributor to Legal Broadcast Network and writes frequently for Technolawyer. She also trains and gives CLEs  regularly on media relations.

In honor of attorney Ronald Katter's return to Lawline.com, take a behind-the-course look at his latest program. Ronald reveals when and why he first knew he wanted to be an attorney, and discusses one of his early successful cases. He also discusses what keeps him passionate about his practice.

At Lawline we are one big family- customers, faculty, company and all. Here is one new faculty member's recollection on why he first chose Lawline.com for his CLE and why he then chose to present CLE with Lawline.com as well.

Arbitration Clauses in Retainers and Legal Malpractice

A trend in legal malpractice retainer agreements, especially in the Intellectual Property field is the all encompassing Arbitration clause.  Beyond the statutory required arbitration in attorney fee disputes below a certain dollar figure, these arbitration clauses require arbitration of all disputes, whether in tort, contract or other claims.

Arbitration has long been said to be quick and economic, but recent experience has led to a different take.  In a $1 million dollar legal malpractice case, the fees to the arbitration company and to the arbitrator may approach $ 75-$100,000.  Of course to bring the same action in Supreme Court costs about $ 385.

Matter of Brady v Williams Capital Group, L.P. ;2010 NY Slip Op 02434 ;Decided on March 25, 2010 ;Court of Appeals ;Jones, J. investigates the situation in which a litigant can't afford arbitration, and the consequences.  Without deciding the case [it requires further fact finding in Supreme Court] the Court of Appeals reviewed Federal law in pursuit of an answer.

How Widespread is Legal Malpractice Litigation?

Legal malpractice sometimes seems to be the language franca in law news. It can show up in any setting. Here is a most unusual story from Law.com [link unavailable]:

"A legal malpractice lawsuit against Baker, Donelson, Bearman Caldwell & Berkowitz stemming from a case involving a 6-ton marble sculpture of Jesus Christ's face may proceed to trial.

The Court of Appeals of Tennessee ruled Aug. 15 that the lower court erred when it threw out two of the former client's theories for malpractice and granted a final judgment to the plaintiff on a third theory. The decision remanded the case back to the lower court for trial.

The former client is Christus Gardens, a tourist attraction and gift shop in Gatlinburg, Tenn. It sued Baker Donelson for its alleged failure to file an appeal on time in a copyright infringement lawsuit that Christus Gardens was defending.

Narrow Retainer Leads to Dismissal in Legal Malpractice

Sometimes its obvious what responsibilities the attorney will take on in a new representation.  If it's a motor vehicle accident, then the attorney is hired to prosecute the personal injury action, up to and including trial.  Here, in  Hallman v Kantor ;2010 NY Slip Op 03280 ;Decided on April 20, 2010 ;Appellate Division, Second Department  the attorneys took on a more limited role.
 
From the decision:  "The defendants submitted a retainer agreement reflecting that the plaintiff "understood, accepted and agreed" that the "scope of" their "engagement" was "to represent" her as a co-executor of her deceased father's estate. This documentary evidence conclusively established a defense to the plaintiff's claims of malpractice. The plaintiff alleged that she was the subject of a pending lawsuit, in effect, to recover sums of money due under certain notes she executed before her father died, and that the defendants committed legal malpractice by, inter alia, failing to speak with her "about the circumstances surrounding [her] signing of [those] notes," and failing to "question[ ]" their "validity." However, the documentary evidence demonstrated that the plaintiff's individual liability on the notes was a matter outside of the scope of the defendants' representation of the plaintiff in her capacity as co-executor of the estate (see CPLR 3211[a][1]; AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 435; DeNatale v Santangelo, 65 AD3d 1006, 1007; Turner v Irving Finkelstein & Meirowitz, LLP, 61 AD3d 849, 850). [*2]" 

The Best Accountants and Attorneys for Growing Businesses is an awards program being presented by The New York Enterprise Report.  This special awards program will recognize the New York area's top business advisors.
 
Accountants and attorneys are consistently considered among the most impactful advisors for business owners. This unique multimedia program will recognize those accountants and attorneys that have gone "above and beyond" in helping their clients succeed. It's the only program in the New York tri-state area that recognizes these advisors in front of their clients. 
 
This one-of-a-kind multimedia program will culminate in an event in June where these top accountants and attorneys will be revealed. The advisors will also be recognized in a special section within the August issue of The New York Enterprise Report as well as on the web at www.nyreport.com.

Attorney Categories Include:

• General Category: Attorney of the Year, Rising Star of the Year, Lifetime Achievement
• Practice Area: Bankruptcy & Reorganization, Commercial Litigation, Employment Law, General Corporate Law, Financing, Intellectual Property, Real Estate
• Industry Focus: Entertainment/Media, Environmental/Energy, Healthcare/Life Science, Professional Services, Technology

Accountant Categories Include:

• General Category: Attorney of the Year, Rising Star of the Year, Lifetime Achievement. 
• Practice Area: Bankruptcy & Reorganization, Commercial Litigation, Employment Law, General Corporate Law, Financing, Intellectual Property, Real Estate. 
• Industry Focus: Entertainment/Media, Environmental/Energy, Healthcare/Life Science, Professional Services, Technology

For more information on the awards program and to fill out your nomination please visit www.nyreport.com/bestadvisors or call 516-997-1950 for assistance with this awards program. 

In this Lawline Exclusive CLE preview, attorney Patrick Oguinn and e-discovery consultants Keith Jones and Jason Briody discuss their work with e-discovery. They further reveal how their passion for technology influences the ever changing world of e-discovery. Finally, they disclose some of the mistakes that attorneys can make during e-discovery. 

Last year, Lawline.com was a finalist for the New York Enterprise Report's the Customer Service award for its reputation on treating customers with respect, dignity, and care. The company now has another achievement to showcase its philosophy on the practice of serving others: one of New York State's best companies to work for.

On Wednesday, April 21, the Best Companies to Work for in New York program ranked Lawline.com the eleventh top small/medium sized employer in the state. President David Schnurman, who created the online Continuing Legal Education company in 1999, accepted the award in Albany, New York, on behalf of his company.

“Our greatest assets are our employees," Mr. Schnurman states. "We strive to provide them with what they need to excel, and in return we believe that this maximizes their potential."

The award consisted of a two part assessment: an employer survey regarding benefits, policies, practices, and other general data (25 percent of the total assessment), and a confidential employee survey evaluating the employees' workplace experience (75 percent of the total assessment).

Mr. Schnurman and Lawline.com add this accomplishment to their growing list of recognitions, namely its recognition in customer services and features in such publications as Crain's, Entrepreneur, Forbes, Inc. and The Wall Street Journal.

Lawline.com is happy to announce that at each month we will award a Customers of the Month! The winner will be announced the first week of every month in our eNewsletter and receive a free one-year extension of Unlimited CLE. The winner will also be provided the opportunity to be interviewed and featured right here on The Legal Beat!

The competition is for Lawline.com Unlimited CLE subscribers only. Not an Unlimited CLE Subscriber? Click here...

With more and more law firms understanding the value of public relations and incorporating it to their business development arsenal, it is essential that paralegals, officer managers and attorneys doing their own media relations and wearing multiple hats be familiar with the very basic tools of communicating with the press.

There are a vast array of tools that law firms can use when communicating with the press. The story/pitch must be newsworthy for the reporter to write about it. Below are tools you can use to garner media interest:

1. Fact Sheets: these provide reporters with the data they need to support their story.
2. Press Release/News Release: these should announce something new, a piece of legislation, something that is going to have an impact on the community. Always ask yourself "tell me, something I don't know." Keep it short.
3. Media Advisories: Typically they can be used to alert reporters what legal experts are available to talk to the press on specific issues.
4. Letters to the Editor: Even though your firm may not incorporate a public relations plan, there is still a way to get your message and your name published in that newspaper. How many times have you read a newspaper article about a topic that is your area of interest and legal expertise —and felt disheartened and disappointed that you were not the person who was being quoted?

Paramjit L Mahli is with award winning SCG Legal PR Network. She is a former journalist who has worked with CNN Business News, Canadian Broadcast Corporation and Journal of Commerce. Comprised of small and large firms, SCG Legal PR Network connects legal experts with reporters nationally and internationally. Ms. Mahli is a contributor to Legal Broadcast Network and writes frequently for Technolawyer. She also trains and gives CLEs  regularly on media relations.
 

In this Exclusive Lawline CLE preview Entrepreneur, Sergio A. Fernández de Córdova, and attorney Joel Wagman, discuss the complex relationship between and entrepreneur and an attorney. When it comes to deal making what are the priorities and who is in charge of the risk at hand?

The value of a dollar: when the economy is running high, its full worth may become overlooked. In times of scarcity, such as in our current economic climate, each expenditure and each penny becomes magnified, and individuals may begin to more heavily scrutinize investments.

In the case of law school, perhaps at one point it was a no-brainer investment for earning a positive return. This may not be the case today.

This past week, a group of lawyers and legal educators met in New York for a two-day conference entitled “Future Ed: New Business Models for U.S. and Global Legal Education” sponsored by New York Law School and Harvard Law School. The attendees expanded upon the findings of the Carnegie Foundation’s 2007 report on legal education, which detailed the lack of adequate preparation law schools in general provide for students.

Law is a constantly changing profession. Just as fast as the practice changes, so must the curriculum. The economic downturn, for example, has dramatically slowed the acceptance of on-the-job training, and thus, hiring in general. To be worthy of a firm’s expenditure and costs, a new hire has to be ready to contribute and provide opportunity to generate revenue for the firm. A two-year period of training is not profitable for any firm, and this is exactly the type of education law schools need to more thoroughly prepare students for.

The meeting was intended for more than diagnostics, however. New York Law School dean Richard Matasar believes the key to having a successful future for law school and having success from this conference is based upon producing concrete, implementable ideas, according to Law.com.

If the labors of this conference and forthcoming projects can produce legal associates who are ready to make an impact in a business setting, it will be easier for those with the means to invest in law school and rest assured their returns will outweigh the costs and sacrifices.

Andrew Bluestone discusses when he first knew that he wanted to be an attorney. He also reveals his surefire motto for success for attorneys. I'll give you a hint.... it involves some very early mornings. To see Andrew Bluestone's exclusive Lawline CLE course go to Lawline.com.

Client from outside New York is sued in Federal Court in New York.  Client hires a NY attorney, and then the case shifts focus to a London Arbitration.  When does the billing in NY end, when does the London case take over, and what happens when there is a billing dispute later?  Justice Edmead's decision in Eaton & Van Winkle LLP v. Midway Oil Holdings Ltd. sets forth a well written explanation of jurisdiction and account stated.

How much must take place in NY for the out of state defendant to be jurisdictionally available in NY?  The short answer is:  enough to satisfy due process.  The longer answer is:  The burden of proving jurisdiction is on the party asserting it.  Long arm jurisdiction is found at CPLR 302(a)(1), and allows for jurisdiction over any non-domiciliary who "transacts any business" within the State, provided that the cause of action arises out of that transaction of business.  A single act will suffice, so long as there is a substantial relationship between that transaction and the injury. The test is the totality of circumstances when determining the existence of purposeful activity. Such acts may include contract negotiations between the parties, meetings, letters or phone calls. 
 

CNNMoney.com recently reported that Jones Soda terminated an exclusivity agreement with potential purchaser, Reed’s, “to explore an unsolicited proposal sent by a second suitor.”  Jones Soda previously announced plans to be acquired by Reed’s for just under $10 million.  Jones Soda also agreed to reimburse Reed’s for $75,000 in expenses incurred due to its termination of the exclusivity agreement.

 Why would Jones Soda do this?  From a negotiation perspective, when a seller can find at least two bidders, the seller’s leverage is usually strengthened because now they have a good alternative (or Plan B) to each of the bidders.  Finding multiple potential buyers allows a seller to play each buyer against the others to obtain the best possible deal.

 Here, Jones Soda’s negotiators believed the value of terminating the exclusivity agreement exceeds its $75,000 cost.  While time will tell if this move pays off, it is almost always a good idea to take the time to find more than one potential buyer, or, as is the case here, to not look a gift horse in the mouth if a new suitor unexpectedly appears.
________________________________________________________________

 Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts' proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com.
 

In any internship, employment, or transaction in a capitalist economy, the ideal situation is one in which both parties are be mutually benefited.

However, the scarcity of employment brought upon by our current economy has caused a shift in leverage. Labor cuts and reduced employment opportunities have led to greater power for employers, and as a result many students and others seek any available opportunities in an increasing competitive environment. This has led to a situation in which employers have the upperhand to take advantage of students willing to provide free labor in hopes of greater returns in the future.

However, many of these businesses do not realize they are walking across a thin line with the law. The Labor Department, according to the New York Times, has begun initiatives to investigate firms failing to properly compensate interns and further educate firms on the laws regarding internships. The Department’s Labor Wage and Hour Division (WHD) developed six federal legal criteria that must be satisfied if an internship is unpaid:

1. The training, even though it includes actual operation of the facilities of the employer, is similar to what would be given in a vocational school or academic educational instruction;

2. The training is for the benefit of the trainees;

3. The trainees do not displace regular employees, but work under their close observation;

4. The employer that provides the training derives no immediate advantage from the activities of the trainees, and on occasion the employer’s operations may actually be impeded;

5. The trainees are not necessarily entitled to a job at the conclusion of the training period; and

6. The employer and the trainees understand that the trainees are not entitled to wages for the time spent in training. 

According to the Employment and Training Administration Advisory System of the U.S. Department of Labor: “If all of the factors listed above are met, then the worker is a “trainee”, an employment relationship does not exist under the FLSA, and the FLSA’s minimum wage and overtime provisions do not apply to the worker.”

Although there is no exact count of the number, there is little doubt among federal regulators that the number of unpaid and underpaid internships is on the rise. Times may be tight, and companies may have to reduce their labor forces within the company, but, unless in accordance with the six factors outlined, this cannot be accounted for through the use of free labor – internship or not.

Contact: Christy Burke
Burke & Company LLC
Phone: (917) 623-5096
E-mail: cburke@burke-company.com

FOR IMMEDIATE RELEASE

CLIO CLOUD-BASED LAW PRACTICE MANAGEMENT INTRODUCES CLIOPAD

A magical and…well…not so revolutionary device is perfect companion to Clio!

Vancouver, BC – April 1, 2010 – Vancouver-based Themis Solutions Inc., provider of web-based legal practice management offering Clio (www.goclio.com), today announced the introduction of its newest product, the ClioPad (www.cliopad.com). 

ClioPad’s high-quality paper stock, made from 100% recycled and biodegradable paper, is college ruled and spiral bound. At a mere 3 ounces and a sleek 0.25 inches thin, the ClioPad is easy to carry and use anywhere.  Featuring an infinite battery life, you won’t be hunting around for an outlet to plug into anytime soon.  ClioPad gives you the ability to jot down ideas whenever and wherever they occur, whether there’s an internet connection or not!  It is the perfect offline companion to Clio, the best way to manage your law practice online.

Legal technology and eDiscovery expert Brett Burney of Burney Consultants was amazed at the innovativeness of the ClioPad.  He reveled, “The ClioPad helped me re-discover the pencil. Who knew you could create text without typing?  The ClioPad is so intuitive and user-friendly that even my 3-year old picked it right up ... although she preferred to use a crayon.  Surfing the Internet is still a little primitive - I tried visiting www.cliopad.com but I had to draw my own 404 error. Also, the ClioPad is so versatile when compared to other products - just try making a paper airplane out of your laptop!”

Clio President and Co-Founder Jack Newton said, “We think the ClioPad is the ultimate offline companion to Clio. It will work anywhere, with or without internet, with or without power. With its built-in handwriting compatibility, we think we’re really on to something.”

Features of ClioPad:

-          Offline functionality

-          Infinite battery life

-          Biodegradable, PVC-free

-          Handwriting-enabled

-          Copy notes from one ClioPad to another

For more information about ClioPad visit www.cliopad.com.  Happy April 1^st!

When a tort is committed outside of New York and a non-resident sues within the State of New York, courts apply the borrowing statute, especially with regard to the statute of limitations.  As an example, Kat House Prods., LLC v Paul, Hastings, Janofsky & Walker, LLP ; 2010 NY Slip Op 02489 ; Decided on March 25, 2010 ; Appellate Division, First Department  reminds us that although the NY statute of limitations is 3 years, the California statute of limitations for legal malpractice is only 1 year.  In this case, the Court applied the California time limits.

"When a nonresident sues in New York's courts on a cause of action accruing outside the state, our "borrowing statute" (CPLR 202) requires that the cause of action be timely under the limitation periods of both New York and the jurisdiction where the claim arose (see Global Fin. Corp. v Triarc Corp., 93 NY2d 525, 528 [1999]). Generally, a tort action accrues "at the time and in the place of the injury," and "[w]hen an alleged injury is purely economic, the place of injury usually is where the plaintiff resides and sustains the economic impact of the loss" (id. at 529).

Applying these principles, it is clear that plaintiffs' legal malpractice claim accrued in California, where their residences and principal place of business were located and the alleged economic injury was sustained, at the latest, in March 2006. Under that state's applicable one-year statute of limitations (Cal Civ Proc Code § 340.6), this action, commenced in November 2007, was time-barred. "
 

Ever quickly peek at your web-based personal e-mail account while still at the office?  Yes, many of us do, too (and we’d be willing to bet that certain Justices on the New Jersey Supreme Court may, as well). 

On March 30, 2010, in Stengart v. Loving Care Agency, Inc., the New Jersey Supreme Court held that an employee could “reasonably expect that e-mail communications with her attorney through her personal account would remain private, and that sending and receiving them via a company laptop did not eliminate the attorney-client privilege that protected them.” 

The New Jersey Supreme Court has a long history of affording New Jersey citizens broader privacy protection rights than those offered by the federal government.  For example, the New Jersey Supreme Court has held that citizens have a reasonable expectation of privacy in their bank account records, in their garbage, and in the personal information linked to their IP addresses.

Thus, when the question of whether an employee who uses a company computer to access e-mail communications between her and her attorney maintains the confidentiality of those communications, it was no surprise that the Court held that the act of an employee who accesses her attorney-client communications via a company laptop does not destroy the privilege. 

But the Court did unleash at least one surprise by announcing that even a “bulletproof” company policy on workplace computer use that claims the employer could read an employee’s attorney-client communications would not be enforceable if the employee accessed the communication through a personal, password-protected e-mail account.

READ MORE:
http://ellblog.com/?p=2055
 

Paramjit Mahli, of the award winning SCG Legal PR Network, reports at The Legal Marketing Association Conference in Denver, CO.

The Legal Marketing Association is a non-profit organization that  supports legal professionals in marketing, communications, business development, and client services. Mahli, who also provides Marketing and Public Relation insights for lawyers here on The Legal Beat, produces an overview of the top issues and how communication technology is transforming the worldwide business platform into a global community.

Take a look...

In this episode of Behind The Course, Lawline CLE Faculty Members and partners in crime, Josh Silber and Richard Abend discuss their Personal Injury and Medical Malpractice practice. They also recall the first case that they each tried, and what's important to remember when entering the legal field.To see more courses from Richard Abend and Josh Silber go to Lawline.com.

The CNN.com headline “Both sides claim victory in BA [British Airways] strike” caught my eye yesterday.  It illustrates the importance of both sides being able to “save face” in a negotiation.

One closing strategy I suggest to accomplish this is to avoid narrowing the negotiation down to a single remaining issue.  Instead, keep at least two issues alive so you can trade them off for each other in the end.  If you give in on one of the issues and your counterpart on the other, this will allow your counterpart, at the least, to save face and not walk away feeling like he lost on the final issue. This has an important psychological impact on your counterpart and this, in the end, will make the deal better for both parties.

Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts' proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com.
 

For many attorneys, the word “networking” conjures up trepidation and concern about their own inadequacies about not being able to “schmooze,” coupled with misconceptions ranging from not having enough time and not having “star” power, to networking being a waste of time that robs them of valuable billable hours. So it’s no surprise that networking often ranks on the lower rungs of business development activities.

By holding these misconceptions to be true, attorneys are really doing themselves a disservice. The truth is that informal networks are at the heart of our lives: it’s how we find jobs, find the right business coach, get our children into the right universities, and even find our spouses.

Similarly, business-related networks provide us with an array of benefits, often overlapping into our personal lives: they help us create strategic partnerships, foster professional development, and as an added benefit, many lifelong friendships are formed along the way. Networks increase our value, as we are more able to help others with their needs.

Many attorneys use the opportunistic or, as it is commonly referred to, the hit-and-miss approach to networking. Typically, attorneys attend an event, strike up a conversation, talk about themselves, and exchange business cards. They usually attend these events with the mind - set of collecting business cards, without really paying any attention to having two or three engaging conversations.

This type of random networking will produce clients every so often. However, it is based on the fact that the person you are speaking to requires legal services. Usually when opportunities do occur, their impact on your practice is marginal.

One of the other problems with this type of networking is that while business cards may have been exchanged, if services are not needed, the cards are discarded.

Networking gurus such as Keith Ferrazzi, the author of Never Eat Alone, will tell you that professional services marketing is about building relationships and, quite simply, that these relationships develop through contact. Mr. Ferrazzi also discusses “Leverage Networking” who are well connected individuals and whose job entail considerable contact with people, such as fund - raisers, journalists, public relations professionals, lobbyists, conference organizers, etc.

In leveraged networking, the attorney cultivates continuing relationships with people who are constantly in contact with large numbers of people in the attorney ’ s target group. The relationships are carefully chosen and continually maintained to assure that the contact will refer a client if the opportunity arises.

The problem lies in the fact that attorneys, by nature, are more attuned to viewing networking as a transactional relationship. Networking, though, is rarely transactional; 99 percent of the time networking is relational. Attorneys have to make that intellectual shift for their networking efforts to be successful. Fortunately, the same skill set required for being an attorney -- being organized, focused, and applying yourself -- is required for networking.

Rather than resist networking, attorneys need to take stock of the skill set they already have and apply it. Like most things there is no magic formula; the truth lies in discovering what that magical formula is for you.

We’re offering Lawline readers a complimentary report on “Why Law Firm PR Fails.” Call directly  646-763-1407. To receive your report and customized pr strategy session.

Paramjit Mahli represents SCG Legal PR Network. SCG Legal was created to bridge the gap between law firms of all sizes and the media. The company serves as a cost-effective way for law firms and solo practitioners to manage public relations. For more information, please visit www.scglegalprnetwork.com

POW! Superhero movies gross huge profits!

BOOM!  Disney takes over Marvel to fully capitalize on the profits to be had!

WHAM! Copyright issues slam down on the company!

This past Saturday, The New York Times published an article regarding the resentments the children of Marvel Comics artist Jack Kirby have had in regards to their share of the company’s profits. Now that Disney has acquired Marvel, Los Angeles copyright attorney Marc Toberoff has donned his cape and sprung into action for the family.

Mr. Kirby’s children have accused Disney and Marvel of depriving the family of a fair portion of credit and profits from the Blockbuster hits many of the Marvel superhero movies have made. 

The issue delves into copyright law and infringement upon intellectual property. It has huge implications for all companies that have created franchises based upon the intellectual design of prior creators.

Lawline.com faculty member Tracy Batt, know well the issues at hand and the likely direction the law points to in this case. Her most recent program, “An Introduction to US Copyright Law,” offers direct application to the questions and issues at stake in this case. 

Take a look here at to view Ms. Batt’s introduction on copyright law and obtain a holistic understanding of how the law applies to this case.

Like father like son, Andrew Smiley discusses how his father introduced him to the Legal World and how his "old school" teachings gave him an advantage over his "new school" contemporaries. He further relays his passion for teaching and Continuing Legal Education. Go to Lawline.com to see Andrew's full course, Practical Guidelines for Getting Items Into Evidence, with a special guest appearance by yours truly!

How does an altered power-of-attorney statute affect the daily practitioner? In this exclusive Lawline CLE preview, Attorney Joel D. Sharrow will focus on New York statutory major gifts rider, durable versus nondurable powers of attorney, and agents and the legal repercussions thereof.

Lawline.com is offering one year of free CLE in Solo University's Scholarship Contest.

One year ago, Solo Practice University first opened its doors to attorneys. In that year, the company has exceeded its goals and provided educational and networking opportunities for lawyers and law students across the country.

Founder Susan Cartier Liebel has a passion for helping those with the hopes of opening a solo law firm to fulfill their dreams. She created Solo Practice University to enact her vision and provide the availability, knowledge, affordability, and convenience an attorney needs to begin a solo firm. Her services include live online classes, on-demand courses, podcasts, and other available media.

Currently, the company is celebrating its one year anniverary by offering a scholarship contest, with the Grand Prize winner receiving a total cash value of $12,000 in prizes, including one-year of free CLE from Lawline.com.

To enter the scholarship contest, the attorney needs to fill out a form at Solo Practice University and submit a five minute video on the individual reason and passion for going into solo practice.

To view the contest rules, click here.

Tips for Using Independent Standards
In its Small Business Questions & Answers section, CNNMoney.com suggests one way to fairly set employee salaries is to rely on third-party salary surveys.

Why?  Because relying on independent standards, like a third-party salary survey, (1) gives you credibility, (2) minimizes emotional roadblocks by depersonalizing the issue and (3) provides a good-faith basis for your position.

As the article points out, you should evaluate the salary survey (or other market value determinant) to verify its relevance.  Consider whether it is a representative sample based on its numeric size, geographic area and/or time frame.

And be prepared to counter unfavorable criteria proffered by your counterpart.  In addition to those mentioned above, consider these tactics:  (1) distinguish your item from the market by focusing on its uniqueness; (2) highlight market changes that call into question the validity of your counterpart’s market analysis; and/or (3) focus on other favorable independent standards such as tradition and precedent.

Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts' proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com.

In a post CLE interview, Ben Brafman and I sat down to discuss a side of criminal defense law that most attorneys may not know. Ben opened up about the addictive nature of the human drama in criminal defense. Although it's not always easy or fun to be Ben Brafman, he knows why he continues to practice, and believe me, he's not throwing in the towel any time soon.Go to lawline.com to view Ben Brafman's CLE courses.

In a recent New York Times article about the just-starting labor negotiation between the NBA owners and players, David Falk, the NBA's first superagent, said "This is not the time to fight. This is a time to sit down as partners and create a system that is realistic in today's economic climate."

Falk's quote raises an important negotiation question - when should you use Competitive Negotiation Strategies vs. Problem-Solving Strategies?

Generally, Competitive Strategies work best when no future relationship is at stake, when the negotiation involves only one or a few issues, when more for your side necessarily means less for your counterpart (zero-sum) and when your counterpart uses Competitive Strategies against you.

Competitive Strategies include not sharing strategic information, aggressively developing and emphasizing your alternatives, employing your own standards, implementing an aggressive offer-concession strategy and actively controlling the agenda.

Problem-Solving Strategies work best when you have or will have a long-term personal or professional relationship with your counterpart, when the negotiation is complex (it involves many issues), when creative options are present and when your counterpart uses Problem-Solving Strategies with you.

Problem-Solving Strategies include sharing strategic information more liberally, deemphasizing your alternatives and focusing instead on independent standards, implementing a more accommodating offer-concession strategy and openly discussing the agenda.

Here, the owners and players obviously are in a long-term professional relationship, there are numerous issues on the table and creative options, such as yet untapped foreign revenue sources, are present. As David Falk pointed out (and assuming both sides are willing to reciprocate), using Problem-Solving Strategies probably makes the most sense.

Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts' proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com.
 

The amount of information the attorney is subjected to every day can be overwhelming. If you want just enough information on today's headlines and top legal news to be able to keep up at that water cooler, then here are some legal shorts to help keep you up to beat:

Did you hear...

• “Jihad Jane,” a Pennsylvania resident, has been indicted for a conspiracy to provide support for terrorist in a murder plot overseas.
• Rodney Alcala, a serial killer who appeared as a guest on “The Dating Game,” has been recommended for the death penalty by a California jury.
• Police will question the Pittsburgh Steeler’s Ben Roethlisberger in regards to accusations of sexually assaulting a woman last Friday in a Georgia nightspot. Authorities are currently reviewing surveillance videos to determine what exactly happened.
• A Greenville, South Carolina woman was charged with homicide after shaking a two year-old child left in her care to death. The woman, Judy Greer, claims that she was trying to rock the child to sleep.
• New York’s own David Letterman is still in the news. His former television producer, Rober Halderman, pleaded guilty for attempted grand larceny. "I attempted to extort $2 million from David Letterman by threatening to disclose personal and private information about him, whether true or false," he said, according to Law.com.
• According to a court filing, former executives of the Milpitas, CA KLA Tencor Corporation settled a $33 million lawsuit regarding stock options backdating four years.
• Lindsay Lohan has sued an extension of E*Trade Financial Corporation, an online brokerage operator, in a claim that the company misappropriated her identity in a recent television ad. Lohan is seeking $100 million in damages and for the ad to be halted. The commercial refers to Lindsay as a “milkaholic.”

Consider this quote from a recent New York Times article about Derek Jeter playing in the last year of his 10-year, $189 million contract: "Per team policy, the Yankees do not negotiate contract extensions during the season."

Jeter, one of the best shortstops of all time, seems perfectly content to abide by the Yankees' policy and wait until the end of the season to discuss a new deal.

Why? The Yankees' policy gains negotiation power from three key objective criteria:

1. Precedent power - the Yankees' have followed this policy in past player negotiations;
2. Tradition power - the longer a practice is followed the stronger it becomes; and
3. Policy power - policies are used in the negotiation context to promote uniformity and consistency.

Good negotiators use objective criteria in negotiations to support their claim that something is "fair and reasonable." Here, the cumulative effect of multiple powerful objective criteria makes it very difficult for a player to argue otherwise.  Other teams which don't have a similar policy or have made prior exceptions would have a much harder time turning down a request from a top player like Jeter to negotiate a contract extension during the season.

Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts' proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com.

 

The contents of this article have been provided by Fernando M. Pinguelo and Frank Gonnello Jr.

'Trouble lurks when you rely on ‘a pure heart and an empty head’

Now, I know what you’re probably thinking.  “Revisit Zubulake!?  But that was so long ago!  Surely everything has changed!”  (Sarcasm)

To be fair, things were quite different back then – no iPhones, no clouds (in the IT world), no Google Any-Application-You-Can-Think-Ofs.  The technology landscape has certainly evolved since Zubulake became a household name.

But (at least) two things haven’t changed:  Judge Shira A. Scheindlin’s view of eDiscovery due diligence and parties’ (and their lawyers’) continued failure to meet these expectations.

In Her Honor’s latest eDiscovery-related opinion, Pension Comm. of Univ. of Montreal Pension Plan v. Bank of Am. Secs., LLC, __ F. Supp. 2d __ (S.D.N.Y. 2010), Judge Scheindlin provides us all with a much needed reminder that sloppy (i.e., negligent or grossly negligent) document preservation and production will expose parties (and their lawyers) to the court’s arsenal of sanctions: from further discovery, to cost-shifting, to fines, to special jury instructions, to preclusion, to the most severe sanction of all – entry of default judgment or dismissal. 

If you’re looking for scandalous discovery abuses or headline-grabbing fines, you’re not going to find that here.  This case addresses boring, run-of-the-mill – yet all too common and very serious – sloppy preservation and production actions on the part of clients and their lawyers.

In Pension Comm. of Univ. of Montreal Pension Plan, a group of ninety-six investors filed the initial action in an attempt to recover $550 million in losses after the liquidation of two British Virgin Island-based hedge funds in which they held shares.   During the lengthy discovery process, defendants brought to the court’s attention substantial gaps in some (thirteen of the ninety-six) plaintiffs’ document productions. 

These defense allegations led to depositions and affidavits that detailed the steps (not) taken to preserve and produce documents (including electronically stored information). At the close of discovery, defendants sought the dismissal of the complaint or some alternative relief for plaintiffs’ discovery abuses. 

All tolled, the court found thirteen plaintiffs either negligent or grossly negligent in meeting their discovery obligations and issued sanctions that ranged from further discovery (at the low end), to monetary sanctions and an adverse inference “spoliation charge” (at the high end).  In true eLessons Learned fashion, let’s take a closer look at exactly why Judge Scheindlin found plaintiffs’ (and their lawyers’) efforts to be “flawed.”

The ‘Pure Heart and Empty Head’ Syndrome

It’s important to point out from the start that Scheindlin’s assessment of plaintiffs’ acts concluded decisively that this was an instance of careless and lazy preservation of data, as opposed to an intentional destruction of evidence.  Nonetheless, she concludes that “there can be little doubt that some documents were lost or destroyed.”   Thus, Scheindlin begins down the path of determining the appropriate sanctions for such conduct, despite plaintiffs’ “pure heart [and] empty head.”

But, before we solve the final puzzle (SAN_TIONS), here are the plaintiffs’ R-S-T-L-N and E (Reckless Steps Their Lawyers Negligently Endorsed):*

The Plaintiffs

• Plaintiffs did not issue an appropriate written litigation hold until a few years after they should have.
• Plaintiffs failed to execute a comprehensive and orderly search for documents.
• Plaintiffs failed to sufficiently guide, supervise, and monitor their employees' document collection.
• Plaintiffs submitted inaccurate, incomplete, vague, and contradictory declarations that misled defendants and the court about plaintiffs’ document preservation and production efforts.
• Plaintiffs failed to adequately prepare and produce witnesses with knowledge about document preservation and production efforts, including which files were searched, how searches were conducted, who was asked to search and what they were told, and the extent to which employees’ efforts were supervised.
• Plaintiffs’ document preservation and production efforts were found to be “severely deficient.”
• Plaintiffs failed to collect or preserve any electronic documents prior to their belated litigation hold.
• Plaintiffs failed to request documents from key custodians and witnesses.
• Plaintiffs’ memoranda (purporting to be litigation holds) never specifically instructed employees and key custodians not to destroy records.
• Plaintiffs designated employees with no experience conducting searches and who received no instruction on how to conduct searches, had no supervision during the collection, and had no contact with lawyers during the search.
• Plaintiffs unduly limited the scope of persons with relevant documents to the point of excluding many more who did in fact have responsive documents.
• One plaintiff’s representative admitted that she failed to search an executive’s PalmPilot, which may have contained relevant emails.
• One plaintiff’s general counsel at first declared that he supervised his company’s document search efforts; but later testified at a deposition that he delegated the search to a paralegal.  When pressed, he did not know the details of the paralegal’s communication with employees regarding preservation or whether employees complied. In fact, general counsel signed his declaration without fully investigating his company’s search efforts, and he lacked personal knowledge of many of the issues raised in his declaration.

Their Lawyers

• Lawyers’ telephone conversations, emails, and memoranda instructing plaintiffs to be over, rather than under, inclusive and noting that emails and electronic documents should be included in the production were not enough to constitute an effective litigation hold.
• Lawyers’ subsequent monthly case status memoranda, which included additional requests for documents, were not enough to constitute either an effective litigation hold or adequate monitoring.
• Lawyers failed to focus efforts on discovery while a three-year discovery stay was in place.
• Lawyers failed to sufficiently guide, supervise, and monitor their clients’ document collection.

* - On the surface, these actions may appear intentional or wanton to the unsuspecting eye.  However, what “saved” these thirteen plaintiffs was the fact that these errors were corrected later through the filing of amended declarations and other curative conduct.

Wheel of Sanctions

Now back to the sanctions.  Scheindlin stated “a plaintiff’s duty [to preserve information] is more often triggered before litigation commences, in large part because plaintiffs control the timing of litigation.”  Here, as with other cases we’ve blogged about, “the breach of the duty to preserve, and the resulting spoliation of evidence, may result in the imposition of sanctions by a court.”  Recognizing that not all sanctions are created equal, Scheindlin addresses which sanctions would be proper under the circumstances. 

She explains that for fines, cost shifting, and other “less severe” sanctions, the crux of the matter is the conduct of the spoliating party.  For more severe sanctions (i.e., dismissal, preclusion, and adverse inference jury instructions), “the court must consider, in addition to the conduct of the spoliating party, whether any missing evidence was relevant and whether the innocent party has suffered prejudice as a result of the loss of evidence.”

Scheindlin employs the following burden shifting test to deal with the burden of proof in cases such as this one, which seek more severe sanctions for egregious conduct: 

1. When the spoliating party’s conduct is sufficiently egregious to justify a court’s imposition of a presumption of relevance and prejudice, or when the spoliating party’s conduct warrants permitting the jury to make such a presumption, the burden shifts to the spoliating party to rebut that presumption.
2. If the spoliating party demonstrates to a court’s satisfaction that there could not have been any prejudice to the innocent party, then no jury instruction will be warranted, although a lesser sanction might still be required.

The Final Spin

After a lengthy and thorough review of the facts (indeed, Judge Scheindlin estimates that, collectively, almost 300 hours were spent on the motion and opinion), the court found that plaintiffs “failed to execute a comprehensive search for documents and/or failed to sufficiently supervise or monitor their employees’ document collection.”  Scheindlin concludes with the lesson of this case:

While litigants are not required to execute document productions with absolute precision, at a minimum they must act diligently and search thoroughly at the time they reasonably anticipate litigation.

The failure to issue an effective written litigation hold constitutes gross negligence because that failure is likely to result in the destruction of relevant information.  Furthermore, a litigation hold that places total reliance on clients’ employees to search and select what they believed to be responsive records without any supervision from counsel is not “effective.”

In the end, jurors will receive instructions that they are permitted to presume the lost evidence is relevant and favorable to the defendants.  Additionally, plaintiffs must now deal with monetary sanctions on top of their alleged $550 million losses. 

Scheindlin set the precedent for the consequences of this sort of behavior in Zubulake and subsequent decisions.  Courts are not going to accept excuses for disregarding now-standard principles and practices.  Attention must be paid to avoid the pitfalls documented by Judge Scheindlin.  Heed her warning because with one spin of the Wheel of Sanctions, you might not be able to afford buying a vowel.
 

The Legal Beat Takes you Behind The Course to meet faculty member, George Brunelle. Through his course on how to run a law firm ethically and profitably, he remembers the first night that he opened his own firm and why and how he knew he had made the right choice. He also recalls our first meeting and why teaching attorneys through CLE is so important. Go to Lawline.com soon to watch the full course.

Two connotations a Yankees World Series game may bring a baseball fan: an experience of a lifetime and a horrendous hit to the pocket book. However, foregoing the latter has caused New York Governor David A. Paterson a whole lot more of the former, but not in a good way.

On Wednesday, the state commission on Public Integrity charged Paterson with violating state ethics laws by accepting free tickets to the World Series opening game last fall between the Yankees and Phillies. This is in direct violation of the state’s ban on gifts to public officials.

The commission also determined that Paterson lied under oath in regards to his intentions of paying for the tickets. Further, Paterson is charged with violating two provisions of the Public Officers Law and three sections of the State Code of Ethics, according to the New York Times.

Amongst the scandal, the governor and his cabinet insist he will stay in office.

Does ethics study interest you? Be sure to check out Lawline.com Ethics courses.
 

In this episode of Behind The Course, Lawline.com introduces one of its faculty members, Criminal Defense attorney, Marc Agnifilo. Agnifilo discusses his passion for bonding with the humanity of every case. He also reflects on how he has changed as an attorney after 25 years of practice and even recalls his first big trial which involved bagels and a Machete! Lawline.com, meet your faculty member, Mark Agnifilo, and for more of Marc's CLE courses go to Lawline.com. 

In a final round of questions, Alan Schnurman reveals what maybe his own children did not know. With the help of the famous interviewer Bernard Pivot and his questionnaire, Alan answers the tough questions, like his favorite sound or alternative profession considerations. To see Alan's other interviews and courses go to Lawline.com and The Legal Beat.

In recognition for its recent inclusion in Best Companies New York's "40 Best Companies to Work for," Lawline.com's Chief Operations Officer Frank Bastone was featured in the February Edition of the Zweig HR Letter, a publication dedicated to highlighting the most innovative tactics on motivating and capturing the talent of employees. In the article, Bastone is attributed for his motivational innovativeness at Lawline.com and offers insights into the specific programs that led to the company's recent accolade.

Below is the featured article. Also refer here for the original publication from The Zweig HR Letter.

Look for Talent Everywhere and You Will Find It

A legal continuing education company puts brainstorming to good use.

When your firm needs fresh ideas— whether in the human resources department or on the front lines of business development—instead of always looking to the upper levels of management or the principals, how about opening the floor to everyone?

While at first blush it may seem like it invites chaos, one company has figured out how to put the old corporate saw of talent scouting and brainstorming into productive company-wide practices that give its employees a greater stake in idea-generation— and thus a greater sense of pride and ownership in the company.

Lawline.com (New York, NY), a 25- person company that provides online continuing education services to lawyers, was recently recognized by the New York State Society for Human Resource Management (NYSHRM) as one of the 40 Best Companies to Work for in New York. It will be honored with the award in April.

‘Real world school’

“We realize our greatest asset at Lawline.com is our employees and there are many specific examples of how we show this,” says Chief Operating Officer Frank Bastone.

Lawline.com makes it a policy to expose its employees to each department at the company.This allows them “to experience a full spectrum of our business development,” Bastone says.“We encourage them to take greater initiative in areas where they excel, and in return we help them further nurture that talent with increasingly greater responsibilities. “In essence,” he says,“we become a ‘real-world school’ that emphasizes and fosters the process of learning within the company.”

Bastone says Lawline.com’s focus on increasing its employees’ knowledge of the company from this perspective has made it a top place to work.

“We find that our employees develop a real vested interest in our company,” he says. “The passion they portray for their work and the passion they develop in growing our company have a synergistic effect on their motivation.This passion becomes contagious, and the positive environment that results is why we feel we were voted for this award.”

Cast a wide net for ideas

Lawline.com also makes it a point to mine that knowledge. Its HR department provides two ways that all employees can contribute ideas toward the growth of the company.

The first is called Innovation Days, Bastone says.

“During this meeting, we gather our entire staff and brainstorm ideas for new products, programs and innovations, utilizing a white board,” he says.“There are no limits, boundaries, or scope to the brainstorming session.”

Nor are there limits on who attends.

“Everyone, from our CEO to our newest intern, is given the opportunity to share and develop these ideas,” Bastone says. “At the end, we review and decide on the ideas that can improve the company and can be put into actionable steps.”

Exercise employees’ options

While internal idea generation has had great results, the company’s top brass is always on the lookout for new talent to add to the mix as well. It has found it in unexpected places.When Lawline.com’s president was exploring joining a gym for employees near the office, he was impressed with the corporate sales manager.

Lawline.com’s president hired the gym’s sales manager as a consultant to train employees in the company’s daily 8 a.m. meetings, which were eventually expanded into a program for the entire company.

“Our daily 8 a.m. meeting program began for our customer service department, but received such positive feedback that employees from separate departments began attending as well,” Bastone says.

“These meetings serve a multitude of purposes— from brainstorming and idea generation to motivational words and goal formations,” he says.“The results of this have been tremendous. Employee productivity has increased dramatically and the energy afterward has instigated great camaraderie and enthusiasm.”

And the consultant who started the whole idea? Three months later, the company hired him as full-time vice president of sales.

Arlene G. Dubin, a featured faculty member of Lawline.com, was quoted in The New York Post  February 20 article "The New Sweetheart Deals." We at TheLegalBeat and Lawline.com would like to congratulate Arlene on her inclusion and all her success.

Arlene has filmed the CLE programs "Estate Planning for Unmarried Couples and Cohabitation Agreements" and "What's Up with Prenups, Postnups & Cohabs?" at Lawline.com.

The following is a news release from Moses & Singer regarding her quote in the NY Post.

Arlene G. Dubin, co-chair of Moses & Singer's Matrimonial and Family Law practice was quoted in the February 23, 2010 edition of the New York Post. In the article, "The New Sweetheart Deals", Arlene discusses the explosive trend in cohabitation agreements particularly in New York where an increasing number of couples are signing "dating prenups". Please click here to view the article. The article was also referenced by NY1 during its "In the Papers" segment. Click here and drag the play button to minute 1:15 to see the segment.

Arlene literally "wrote the book" on marital agreements; see Prenups for Lovers: A Romantic Guide to Prenuptial Agreements, www.prenupsforlovers.com. She is nationally recognized for prenuptial, postnuptial, cohabitation, paternity/parenting and divorce/settlement agreements. Arlene has appeared on many national TV and radio shows and has been quoted and referenced in numerous national publications. She also lectures extensively on the topic of marital agreements.

If you need counsel in the area of matrimonial law, please contact Arlene at 212.554.7651 or at adubin@mosessinger.com.

Since 1919, Moses & Singer LLP has provided legal services to diverse businesses and to prominent individuals and their families. Among the firm's broad array of U.S. and international clients are leaders in banking and finance, entertainment, media, real estate, healthcare, advertising, and the hotel and hospitality industries.

Students applying for college have one chance to present themselves beyond their GPA, SAT scores, and extracurricular agendas. Traditionally, this platform has been the essay, in which most colleges strive to analyze the student’s writing capability, creativity, personality, and motivations. However, technology presents opportunities, and Tufts University is experimenting with admissions materials to gain greater insight into the indivduality of each applicant.

Tufts University is accepting short YouTube videos for potential students to attach along with their applications. The university has always been known for its unique applications, and it has always pushed for creativity within the  process. This upcoming year for example, according to the New York Times, Tufts essays pose such questions as "Are we alone?", along with the option to "create something" out of a single piece of paper.

The videos do not yet carry the same weight in the application as other criteria yet, and for now are an optional addition. However, representatives of the school state that, unless inappropriate, vidoes generally cannot hinder the student's chances of admission. At the same time, video content allows for a platform that may be a more familiar form of self expression for many students.

Applicants should be wary not to associate innovate with lax, however, as Tufts remains one of the country's most prestigious universities. According to the 2010 US News & World Report college rankings, Tufts ranks as one of the top 20 most selective universities in the United States. Tufts was also recognized in the report as a top 30 undergraduate university in the United States, making it difficult for any traditionalist to argue with their methodology.

For a full report, please visit The New York Times.
 

Think about student privacy and what comes to mind? Locker raids? Backpack searches? Parking lot investigations?

How about webcam surveillance?

A Philadelphia school district recently denied allegations after being accused of secretly using the school’s laptop computers to monitor student activities and behaviors at home via webcam. Philadelphia's Lower Merion School District stated their only use of activating the webcams was to find missing property. The district issues Macs to each of its 2,300 students.

Blake Robbins, a student of Lower Merion’s Harriton High School, along with his parents Michael and Holly, filed the lawsuit this past Tuesday. The student claims the school’s vice principal made accusations of him selling drugs off-campus based upon a photo taken on the school's laptop webcam.  Their attorney further supports his defense by acknowledging there was no notification that the school’s laptops had such software installed or could be potential utilized.

The defense claims that the vice principle has been unjustly portrayed, and that the computer tracking feature and webcam’s only usage has been in the recovery of lost property.

The FBI is currently investigating the violation of wiretapping and computer-intrusion laws, according to the AP Press.

 

Tax attorney, Jany Sabins, didn't plan on practicing tax law, but now it is the focus of her practicing. She also has invaluable advice for females breaking into the legal field.Go to Lawline.com to view Jany's course on estate tax planning,Tax Planning in Wills: Time is of the Essence.

Lawline.com faculty member Fernando Pinguelo and his 15 law review students of his eDiscovery Course at the prestigious Seton Hall Law students will channel their insights on today's hottest eDiscovery issues right here through The Legal Beat.

Fernando has also published an extensive reviews on the topic of eDiscovery, and will soon be presenting The Tiger Woods Effect: The Uncertain and Turbulent Future of Endorsement Deals, Morals Clauses, and Reverse-Morals Clauses, at The Cardozo Arts & Entertainment Law Journal Annual Spring Symposium, March 4, 2010. Fernando's blog e-Lessons Learned ia an ABA Top 100 blog.

Check in with the Legal Beat to get all the latest briefs of Fernando and his students legal insights.

Congratulations on the following press release to our good friends at SCG Legal PR Network. They have a tremendous service and deserve all the recognition and good fortune that they will undoubtedly continue to find.

The company is celebrating its one-year anniversary with the achievement of 90 percent of its current members being interviewed by the press to date.

Check out the full release.

NEW YORK—SCG Legal PR Network, a service that connects lawyers as sources with reporters seeking legal experts, today marked its one-year anniversary with the achievement of 90 percent of its current members being interviewed by the press to date.

“Law firms are quickly learning that public relations and visibility are essential ingredients for business growth. However, given the current economic climate, law firms, like most businesses, are grappling with how best to get ROI on their marketing dollars. SCG Legal PR Network does this. When I think about all that SCG Legal PR Network has managed to provide, it’s hard to believe it has only happened in one year,” said SCG Legal PR Network Founder Paramjit L. Mahli. “Joining the right lawyers with the right members of the press was not always so streamlined. SCG Legal PR Network’s database of legal experts continues to grow throughout the country.”

Within its first year, SCG Legal PR Network has received over 160 international television and print press requests from media such as Associated Press, Bloomberg, Reuters, Guardian UK, CNN and many more. Thirty percent of SCG Legal PR Network’s lawyer members who have been contacted by the press have been interviewed twice or more within the first year.

“SCG Legal PR Network certainly levels the playing field for small firms that are just getting their feet wet in the world of PR,” said SCG Legal PR Network lawyer member Ginger D. Schröder of Schröder, Joseph & Associates, LLP. “In today’s fast- paced, 24/7 technological world, it doesn’t matter whether your law firm is in Albany, N.Y., or Lexington, Kan. Google has become the first point of reference, and this is precisely where building your leadership as an expert is critical. Services provided by businesses such as SCG Legal PR Network are invaluable. Very affordable for firms starting PR.”

Other accomplishments include SCG Legal PR Network’s law firm member roster expanding from domestic firms to global firms such as Chadbourne & Parke LLP and international legal groups such as the International Lawyers Network. The network also won the Gold MarCom Award for creativity and innovation last October.

About SCG Legal PR Network

SCG Legal PR Network is a global network that connects lawyers as expert sources with reporters and features a 24/7-accessible database of legal experts from a variety of areas. Its team is comprised of former award-winning journalists whose experience spans over three continents and 30-plus years in the field of journalism and public relations. The network was started by a former journalist, Paramjit Mahli, who has worked within news outlets like the Canadian Broadcasting Corporation (CBC), Financial Post, CNN, CNNfn and The Journal of Commerce. For more information about the SCG Legal PR Network,
 

In the third and final installment of On the Line with Alan Schnurman, Alan discusses the stakes of New York real estate and making patience the key to any success. Go to The Legal Beat to view Part 1 and Part 2 of Alan's On The Line interview, and go to Lawline.com for exclusive Alan Schnurman CLE programming.

Suddenly find yourself at the wrong end of a trade secrets litigation?  Heed this advice: When the court says “preserve,” that means documents, files, data, and BlackBerry® smartphones.  Thus, be sure to instruct your clients not to wipe the memory from their BlackBerrys or other handheld devices before turning them in; or else, your client may be subject to sanctions.

The defendants in a trade secrets theft case learned this lesson the hard way when the District Court in Florida slapped them with sanctions after they turned in freshly “wiped” BlackBerrys.  The court interpreted the freshly sanitized BlackBerrys as evidence of bad faith that justified sanctions.  But you might be thinking: “A BlackBerry wiped clean?  Who cares!  All the e-mails the other side could possibly want are readily available on the server.”  This type of thinking could get you in trouble.  Let’s see why.

After plaintiff Southeastern Mechanical Services, Inc. (“SMS”) prosecuted employees of a construction services company (“Defendants”) with theft of trade secrets, they obtained a court order requiring Defendants to preserve “all computer files, data, documents, or similar information on their computers” until otherwise notified.  The court also prohibited Defendants from “destroying any and all information and documents potentially relevant to” SMS’s claims.  Defendants’ in-house counsel properly requested employees to turn in their laptops and BlackBerrys, but seemingly failed to warn them to refrain from wiping the BlackBerrys’ internal memory.

The BlackBerrys ultimately made their way into the hands of SMS’s computer forensics expert who quickly determined that (a) they had been wiped clean, and (b) the “wiped-clean” condition was no accident.  Even the Defendants’ own forensic expert conceded at a deposition that only “intentional actions” would result in a full BlackBerry data wipe.  That was all the court needed to hear.

The court considered SMS’s requests to sanction Defendants by granting either (a) default judgment, (b) a ruling as to the improper use of trade secrets, or (c) an adverse inference jury instruction.  In Florida, a court may impose sanctions based on evidence spoliation when the opposing party, in bad faith, destroys evidence it had a duty to preserve and that had once existed.  The destroyed evidence must also be “crucial” to the other party’s case or defense.  Thus, for the court to justify issuing the sanctions requested against Defendants, it would need to conclude that the deleted BlackBerry data was crucial to SMS’s case.

With minimal deliberation, the court first concluded that “evidence existed at one time” on the BlackBerrys and that Defendants had a duty to preserve that evidence.  But was that evidence crucial to SMS’s case?  And had Defendants deliberately wiped the BlackBerrys in bad faith? 

The “crucial” requirement was easy.  The court concluded that a “substantial and complete” destruction of data justified a finding that the destroyed evidence would have helped SMS’s case and its loss was prejudicial. 

The court next noted that the BlackBerrys could have only achieved a “wiped” state following deliberate and intentional actions; and that it was “suspicious” that, following months of use, the BlackBerrys contained no “e-mails, text messages, calendar entries, or records of telephone calls.”  It all reeked of bad faith.  The court discounted the Defendants’ suggestion that SMS’s forensic expert could have accidentally deleted the files from the BlackBerrys.

Defendants argued that it didn’t matter that they had wiped the BlackBerrys before returning them because any e-mails that had been deleted were mirrored on their server, and they had already given SMS copies of those e-mails. 

The court, however, was not impressed.  It pointed out that Defendants had used their BlackBerrys for both work and personal e-mail accounts; and the personal e-mail accounts were not mirrored on the employer’s server.  For one Defendant, the court calculated that approximately three weeks’ worth of potentially relevant data had been deleted.  Based on all facts at hand, the court granted SMS an adverse inference jury instruction based on the Defendants’ failure to preserve their BlackBerrys.  

While this case dealt specifically with BlackBerrys, the lesson learned should be applied to any smartphone or other handheld device that can store data, including iPods, digital cameras, and GPS devices.  To avoid spoliation sanctions, make it clear to all employees that they should not perform any data wipes, system resets, scrubs, scours, or other similar actions once the duty to preserve exists.  Bottom line: don’t go near the “Wipe Handheld” choice in the “Security Options” menu. 

eLesson Learned: 
When the court orders your client to preserve data, don’t let employees wipe their BlackBerrys® before turning them in.  A wiped BlackBerry smartphone could translate into “bad faith” and might just induce a court to impose spoliation sanctions.

Author:
By day, Laura J. Tyson handles e-discovery issues for a boutique litigation firm in Roseland, NJ, while at night she completes her J.D. at Seton Hall Law School in Newark, NJ.

Case Citation:
Southeastern Mech. Servs. v. Brody, No. 8:08-CV-1151, 2009 U.S. Dist. LEXIS 85430 (M.D. Fla. Aug. 31, 2009)

This attorney is a self proclaimed ethics geek, who bleeds scarlet red, and is ultimately just a frustrated performer a heart. Who is teaching at lawline? Attorneys meet your faculty member, Stuart Teicher.

Actually we're a little shocked at the facts of this matrimonial action involving Thomas Liotti.  in Coccia v Liotti ;2010 NY Slip Op 00917 ; Decided on February 9, 2010 ; Appellate Division, Second Department  we see some very unusual language from the Appellate Division.  Beyond reinstating [or more correctly put, modifying] the legal malpractice claims, the AD basically granted summary judgment wiping out attorney fees by Liotti on the almost unheard of use of a disbarred attorney and misleading the client into thinking that the attorney was in good standing.

Rather than explain, here is the decisional language:

However, the Supreme Court erred by, in effect, upon renewal, vacating the determination in the order entered September 13, 2007, denying that branch of the initial cross motion which was for summary judgment dismissing the sixth cause of action to recover damages for fraudulent inducement, based upon the defendant's alleged misrepresentation that the person who would be substantially responsible for her case was an attorney. The plaintiff alleged that she later learned that such person was a disbarred attorney, prohibited from practicing law, and that the defendant fraudulently concealed this information. Contrary to the Supreme Court's conclusion, we find that the defendant failed in his initial submissions to establish, as a matter of law, that the plaintiff did not justifiably rely upon his representation of this individual's status as an attorney in good standing.

The Supreme Court erred in denying those branches of the plaintiff's cross motion which were for summary judgment dismissing the first, second, and third counterclaims seeking to recover outstanding counsel fees.

Liability of Subsequent Attorneys in Legal Malpractice

Macaluso v Pollack, 2010 NYSlipOp 30276(U) , Justice Diamond, Nassau County presents an interesting story of how a case can get dismissed. Beyond the storyline, the case presents analysis of liability of predecessor/subsequent attorneys, how the dissolution of a partnership affects legal malpractice litigation, what subsequent attorneys  can accomplish in the Second Circuit, and potential liability of associate attorneys.
The original attorneys were to represent plaintiff in an employment discrimination case, but negligently failed to follow court orders in US District Court.  Eventually, the case was dismissed by the US District Judge, on one particular day in which the attorneys did not appear for a conference.  This was apparently the last straw, as there had been many previous late filings, etc.  So case is dismissed.  Attorneys for plaintiff at that point were a partnership of two attorneys.  These attorneys then file an appeal to the Second Circuit, but leave out several essential filings which dooms the appeal.

Employment Discrimination and Legal Malpractice

Carboni v Ginsberg; 02/02/2010 2010 NYSlipOp 30256(U) Maltese, J. is an illustration of how a potential legal malpractice case underlays almost all activity within the realm of attorney representation, which is to say, everything.

Here, the question is whether plaintiff lost his employment in a wrongful manner, and after that determination, whether he has sued the attorneys within the appropriate statute of limitations time.
In a meticulous, fact specific decision, Justice Maltese writes that under CPLR 3211(a)(1) "the movant is required to demonstrate that the `documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law.'"

No Right to Arbitrate Fee Dispute Despite Retainer Language

In Edelman v Poster;  2010 NY Slip Op 00788 ;  Decided on February 4, 2010 ;  Appellate Division, First Department  we see a situation in which a matrimonial retainer agreement boldly stated a right to arbitrate, yet the Appellate Division, First Department, determined that client has no right to arbitrate

Here is the retainer language:  "While I seek to avoid any disputes concerning the payment of our fee, in the event such a dispute does arise, you have the right, at your election, to seek arbitration, the results of which are binding on both parties. I shall advise you in writing by certified mail that you have 30 days from receipt of such notice in which to elect to resolve the dispute by arbitration, and I shall enclose a copy of the arbitration rules and a form for requesting arbitration. If no action is pending and if you do not timely enforce your rights to enter into fee arbitration, I may commence legal proceedings against you to recover any unpaid fee "
 

In her recent FT.com column, Memory doesn’t matter when you have the net, Lucy Kellaway humorously recounts recent memory lapses and multi-tasking failures.  She considers several solutions, one of which is to make lists.

When preparing for a significant negotiation, we suggest you make three lists regarding your information needs. 

First, list the information you want to get before you meet with your counterpart.  Second, list the information you want to get during your negotiation.  Finally, list the information you want to initially share and withhold.

Making lists will help you strategically and comprehensively think through the information gathering process.  It will also help you avoid forgetting something important in the heat of the battle or when juggling several tasks.

Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts' proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com.
 

So what is all the fuss about Stengart v. Loving Care Agency, Inc. et al.?  Why are eDiscovelebrities and employment lawyers alike watching the case so closely?  Why should YOU be watching? Privacy! (And eDiscovery, Of Course)

“It” (Stengart, the fuss, the Supreme Court of New Jersey, this post, all this blog attention) all boils down to whether this employee had a reasonable expectation of privacy in emails between the employee and her lawyer sent and received (during work hours) using the employer’s computer and IT systems. 

According to the trial court, Stengart did not have a reasonable expectation of privacy and the emails were properly retrieved and used by the employer and its lawyers in defense of the lawsuit.  According to the appeals court, not only did she (have a reasonable expectation of privacy), but also the appeals court took issue with the way the company lawyers handled the situation and queried whether the lawyers acted inappropriately when they retrieved and used these emails – and whether they should be sanctioned and/or thrown off the case.  Ouch! 

To finish reading this article, click here

Despite an economic environment that has crippled many small businesses, there is still opportunity to be found. The Wall Street Journal cited Lawline.com today for its ability to take advantage of a suffering real estate market.

Lawline.com has seen its workforce grow beyond the capacity of its current Downtown Manhattan office, and it has used an aggressive but patient approach in order to take full advantage of lower rent prices.

The following is an excerpt from the Wall Street Journal in regards to Lawline.com’s ability to capitalize on the down market:

“Take David Schnurman, president of Lawline.com CLE Inc., an online provider of continuing legal education, who needed more space for his growing work force.

When hunting for a new location last year, he put out queries on an entrepreneurs' mailing list—which netted a number of leads—and saw more than 50 spaces with six different brokers. Working with different agents was crucial, he says, because some had listings that the others didn't.

‘"It seems to be that there are more deals in the market than ever,"’ Mr. Schnurman says. ‘"For any company that's growing, this is a time to be a bit more aggressive.’"

Click here to read the rest of the article from the Wall Street Journal...

In her recent FT.com column, Memory doesn’t matter when you have the net, Lucy Kellaway humorously recounts recent memory lapses and multi-tasking failures.  She considers several solutions, one of which is to make lists.

When preparing for a significant negotiation, we suggest you make three lists regarding your information needs. 

First, list the information you want to get before you meet with your counterpart.  Second, list the information you want to get during your negotiation.  Finally, list the information you want to initially share and withhold.

Making lists will help you strategically and comprehensively think through the information gathering process.  It will also help you avoid forgetting something important in the heat of the battle or when juggling several tasks.
 

Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts' proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com.

 

The Legal Beat's Meredith Ganzman heads to New York's LegalTech to Interview LegalRelay CEO John Gilman. LegalRelay made a splash at the event with the launching of its legal version of Amazon.com Reviews.

I'm taking a guess that, in many cases, the Louisiana attorney has a high chance of also being a Saints fan, or at least caught up in the Saints Super Bowl frenzy.

Word on the virtual street (Twitter) is that the Louisiana State Bar Association will be holding a CLE seminar next Friday, February 5 regarding the "Who Dat?" trademark controversy.

If you aren't familiar, the issue is over vendors selling t-shirts with the phrase "Who dat?" - a long time phrase used in New Orleans from the chant "Who dat gonna beat dem Saints?" The NFL views the sale of these shirts on an infringement of a trademarked phrase that it owns.

If the rumors on the Louisiana State Bar Association CLE are true, then I'm the first to commend them on putting together such a timely and relevant program on short notice.

Check back with The Legal Beat and we'll keep you up to date on the status of the program.

Lawline.com is proud to announce The Golden Ticket. The NYCLA Insitue and Lawline.com now offer unlimited online and live CLE programing for just $499. Register now at Lawline.com/goldenticket!

In a historic moment for Continuing Legal Education, Lawline.com and the New York County Lawyer’s Association (NYCLA) have teamed up to provide a combination of the highest quality live and online Continuing Legal Education - but only with an exclusive Golden Ticket. The offer is extended to twenty-five fortunate attorneys who come across the opportunity. Each recipient receives one full year of unlimited access to both Lawline.com and NYCLA courses, which combines for a total of over 275 hours of CLE. The price? Only $499.

Lawline.com has been providing online CLE for over 10 years and has been featured in such publications as Forbes, Crains, Inc., Entrepreneur, and CNBC. Lawline.com has also recently been named one of the 40 Best Companies to Work for in New York State and a Finalist for Customer Service by the N.Y. Enterprise Report

The New York County Lawyers' Association has historically been one of the largest and most influential county bar associations in the country. Having turned 100 years old in 2008, the organization holds strong to its traditions, and their Golden Ticket offering with Lawline.com is another example of advancing the practice and education of attorneys.

Time is short for receiving the exclusive Golden Ticket, and The Legal Beat provides one of the limited routes!

 

Michael Stutman stars in this week's Family Law Friday on The Legal Beat. Host and Producer Meredith Ganzman leads Stutman through a discussion on Pets in Divorce and Custody Cases.

In December, GE CEO Jeffrey Immelt disclosed NBC would lose an estimated $200 million on the Winter Olympics.  In a New York Times article yesterday, Dick Ebersol, chairman of NBC Universal Sports, said he would have preferred that Immelt wait to reveal the losses until the end of January “so it didn’t cause any disruption of sales.”

“When you say something like that,” Ebersol said, “advertisers think they’ll get a bargain, and we’ve told them there aren’t any.”  In effect, Immelt decreased NBC’s leverage with its advertisers by disclosing that NBC is a bit desperate for revenue due to its expected loss, and that it had fewer competing advertisers for its spots.

What is the lesson here?  All of the key internal stakeholders in a negotiation need to be on the same strategic page.  Problems arise when the left hand doesn't know what the right hand is doing.  To help prevent this, organizations should – for all their significant negotiations – create strategic negotiation plans and implement negotiation best practices. This includes identifying what strategic information should or should not be disclosed and ensuring all of the key stakeholders are aware of those strategic choices. Importantly, our ExpertNegotiator Planning and Management Software is designed to help you do this by allowing you to create online negotiation plans accessible by each stakeholder in your negotiation – thus ensuring you avoid problems like the one created by Immelt.

Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts' proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com.

 

Tiger Woods: he’s flipped sports, entertainment, and media upside down as of late. But it doesn’t stop there – he’s thrown the legal world into turmoil as well.

In a symposium set for March 4 at Cardoso Law School, in  New York City, three attorneys, Fernando Pinguelo, a partner at Norris McLaughlin & Marcus and Chair of the firm's Entertainment Law Group, Porcher L. Taylor, III, an associate professor at the University of Richmond, and Timothy D. Cedrone, a 2009 cum laude graduate of Seton Hall University School of Law, will lead the topic, The Tiger Woods Effect: The Uncertain and Turbulent Future of Endorsement Deals, Morals Clauses, and Reverse-Morals Clauses? The trio is also focusing on producing a first of its kind law review.

Media, business, and law are industries greatly familiar with moral clauses – a provision in a contract that companies utilize to prohibit specific behavior unto the “talent,” whereby the company can terminate the contract if the talent violates these terms. However, Pinguelo, Taylor, and Cedrone are focusing in on the opposite end of the spectrum. Can the talent hold businesses accountable for unethical behavior?

This is what is becoming referred to as the Reverse-Morals Clause, an area of increasing interest and discussion within the legal community. According to Pinguelo, there is currently no scholarly law research on the subject, and little to no known law review in regards to it. He and his colleagues are out to change that.

“The reverse moral clause allows the talent unilateral ability to terminate a contract if the ethics of a business is called into question,” Pinguelo states. Pinguelo added that these issues date back to examples of Enron, but also have been notable in more recent cases such as Lehman Brothers.

The trio’s research will focus on a phenomenon they have dubbed “The Tiger Woods Effect.” Woods’ climb to fame, stardom, and power, along with a near perfect image, created him into the ideal model to demand reverse-morals clauses. However, the current ethical questions surrounding him in the media have damaged this negotiating power.

“Pre-Tiger Woods scandal, before Thanksgiving, he could write his ticket,” says Pinguelo. “If anyone had the potential for a reverse-morals clause, it would have been him.”

Before the symposium, the three attorneys plan to publish a law review titled, The Reverse-Morals Clause: The Unique Way to Save Talent Reputation and Money in a New Era of Corporate Crimes and Scandal. In the review, they divide the issue into five sections, in which they discuss the necessity of reverse-moral clauses and offer drafting and negotiation insights.

Pinguelo and Cedrone also recently authored what now will serve as a framework for the upcoming material entitled, Morals? Who Cares About Morals? An Examination of Morals Clauses in Talent Contracts and What Talent Needs to Know.

Both the review and the symposium present the potential to be the foundations of a largely growing and increasingly important area of law. We’ll keep you up to beat on all that’s coming up in research and news leading up to the symposium.

Fernando Pinguelo is also a distinguished faculty member of Lawline.com and a lectured in both E-Discovery: What you Technically Should Know and Morals? Who Cares About Morals? An Examination of Morals Clauses in Talent Contracts and What Talent Needs to Know, the latter in which he once again teamed with Timothy Cedrone.
 

Bridgewater, NJ (January 12, 2010) – Fernando Pinguelo will speak at the Second Annual Campbell Law Review Symposium, entitled Emerging Issues in Electronic Discovery, on Friday, January 22, 2010, in Raleigh, North Carolina.  His topic will be “How Are Company Legal Departments Positioning to Deal with eDiscovery in the Event of Further Litigation.”  The Campbell Law Review Symposium expects to draw hundreds of practitioners and in-house counsel from across the country.  Pinguelo’s presentation is part of a larger project that will assist in-house counsel address electronic discovery issues in a meaningful and cost-effective manner.  The results of his project will be published within a special Campbell Law Review edition dedicated to electronic discovery.

The Campbell Law Review began publication in 1979 for the purpose of serving the legal community with scholarly articles, notes, comments and other reviews of legal topics.  The Campbell Law Review fulfills this service by placing special emphasis on issues from North Carolina and other states in the Southeast, as well as issues concerning national legislation and Constitutional questions from all circuits and the Supreme Court.

Pinguelo, Co-Chair of the firm’s Response to Electronic Discovery and Information (REDI) Group, devotes his practice to complex litigation with an emphasis on business disputes, electronic discovery, and media and employment matters.  He has experience in all facets of litigation (trial, mediation, arbitration, and appellate) in both federal and state courts. As a former prosecutor, he has tried several cases.  Today, Pinguelo handles a broad spectrum of disputes including copyright infringement, misappropriation of trade secrets, fraud, breach of non-compete covenants, discrimination, and business torts; and is able to address a rapidly evolving crisis or emergency.

A leader in the emerging area of electronic discovery, Pinguelo works with business owners, C-level executives, in-house counsel, and human resources, information technology, and risk managers to develop strategies to manage business and legal issues related to electronic documents. He recognizes that complex contract and statutory considerations impact the evolving business environment. This understanding enables him to help clients comply with the broad array of laws that regulate document management. Pinguelo focuses on preventing claims and pursues strategies that enhance a client’s ability to manage electronic documents because he is keenly aware of the financial and public relations fallout that can result from high-profile electronic discovery abuses and negligence.

Notably, Pinguelo was involved in New Jersey’s first case addressing its new electronic discovery rule amendments, and has lectured numerous times on the topic, including at the Judicial College which provides judges with a wide range of academic programs. He has designed a state-of-the-art electronic discovery law course and teaches one of only a few such courses in the country at Seton Hall University School of Law.  Recently, the Fulbright Program, the U.S. government's flagship international exchange program, designated Pinguelo a Fulbright Specialist for his work in eDiscovery, and he will engage in a project at a university in one of over 100 participating countries.  Pinguelo was also invited to be a member of eDiscovery Group of The Sedona Conference® Working Group Series, a prestigious series of think-tanks consisting of leading experts brought together by a desire to address various "tipping point" issues in each area under consideration.  Pinguelo founded and contributes regularly to eLessons Learned (www.eLLblog.com), an educational blog about electronic discovery best practices that was recently recognized by the ABA Journal magazine as being one of the top 100 law blogs of 2009.

Pinguelo earned his J.D. from Boston College Law School in 1997 and his B.A., magna cum laude, from Boston College in 1994.  He is admitted to practice in New Jersey, New York, and the District of Columbia.

~ ~ ~

Norris McLaughlin & Marcus has been serving the business community of New Jersey and the New York metropolitan area since 1953. Once a humble two-man practice on Main Street in Somerville, New Jersey, Norris McLaughlin & Marcus has become the largest firm in Somerset County and one of the top 20 firms in New Jersey, with a significant presence in New York City and the Lehigh Valley in Pennsylvania.

Norris McLaughlin & Marcus’ clients run the gamut, from Fortune 500 corporations to smaller publicly and privately held companies to start-up companies and individuals. The attorneys, with staff assistance, provide legal services in nearly every area of business law. A full practice area listing can be found at www.nmmlaw.com.

The firm’s more than 150 attorneys come from diverse backgrounds, hold degrees from top U.S. law schools and regularly serve as leaders in bar associations and various trade groups.  With 25 of its members listed as the Best Lawyers in America for 2010, in addition to an active repertoire of speaking engagements and legal publications, attorneys at Norris McLaughlin & Marcus embody large-firm talent in a small-firm setting. This combination of legal talent and personable surroundings allows attorneys at Norris McLaughlin to provide service and value to their clients on an individual level. It is the goal of Norris McLaughlin& Marcus to accommodate the needs of every client through the use of experience, strategic planning and common courtesy.

Norris McLaughlin & Marcus enjoys an international reputation for excellence through its membership in Meritas, the largest worldwide affiliation of high-quality, mid-sized law firms. With Meritas, Norris McLaughlin & Marcus is able to extend its services to clients in every state and in more than 70 foreign countries.

In this Legal Beat edition of the CLE Faculty Spotlight, attorney Abram Bohrer will review his background in and his passion for handling personal injury and airline travel. He will also reflect on his experience as a new addition to the Lawline Faculty. Look for Abram Bohrer's Lawline exclusive CLE course soon.

A friend recently purchased a used car "as is" for around $5,000 from a dealer. About 45 days later the transmission tanked. Unfortunately, the problem appeared after the state "lemon law" warranty expired.  My friend obtained several estimates for the repair, the cheapest of which was $1,400. Not wanting to pay so much, she returned to the dealer to see if they would help.

What negotiation approach should she take?

She could try a competitive approach and threaten to file complaints with the appropriate state regulatory agency and the Better Business Bureau and stop making her payments (the dealer had financed almost the entire purchase price).

Alternatively, she could take a more problem-solving approach and appeal to the dealer's sense of fairness and potential sympathy for her plight (she is a single mother and her car broke down shortly before Christmas).

Based on her positive experience buying the car (the dealer hadn't use overly competitive, high-pressure tactics), she decided to take the latter approach. It worked, and the dealer ultimately agreed to repair the car for only $300 even though they had no contractual obligation to do so.

The bottom-line: picking the right negotiation approach will help you get the best results.

__________________________________________________________________________________________


Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts' proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com.
 

NEW YORK, Jan. 7 /PRNewswire/ -- Lawline.com is once again being recognized for its excellence and innovation. It was named one of the "40 Best Companies to Work for in New York" by the New York State Society for Human Resource Management and Best Companies Group. This comes just a few short months after being chosen a finalist in the "Best Customer Service" category by the New York Enterprise Report.

Established in 1999, Lawline.com has become one of the nation's leading providers of Online Continuing Legal Education. Focusing on “quality, price and service” has always been its primary mission. Lawline.com has been able to achieve this goal by hiring energetic, highly motivated individuals and exposing them to multiple departments in order to find the best fit for the employee’s skill set.

David Schnurman, Lawline.com's President, believes this is at the core of his company’s success. “Our greatest assets are our employees. We strive to provide them